Soffar v. Dretke

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-20385
MAX ALEXANDER SOFFAR,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
December 21, 2000
Before EMILIO M. GARZA, DeMOSS and DENNIS, Circuit Judges.
DeMOSS, Circuit Judge:
Petitioner Max Alexander Soffar, convicted of capital murder1
and sentenced to death by a Texas state court seeks a certificate
of probable cause (“CPC”) to appeal the district court's dismissal
of his first federal application for writ of habeas corpus, which
he filed pursuant to 28 U.S.C. § 2254. The federal district court
1
Soffar was convicted for the murder of Arden Alane Felsher
while in the course of committing the robbery of Stephen Allen
Sims, which elevated the crime from murder to capital murder. See
TEX. PENAL CODE § 19.03.
refused to grant Soffar an evidentiary hearing and granted summary
judgment in favor of Director Johnson, who has custody of Soffar
pursuant to his capital conviction. The district court then
entered an order denying Soffar’s application for writ of habeas
corpus. Soffar’s application for a CPC is governed by
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). We
therefore construe Soffar’s request for a CPC as a request for
certificate of appealability (“COA”), and because we have
determined that Soffar has made a substantial showing of the denial
of a constitutional right with respect to his claim that the State
violated his Fifth Amendment rights by interrogating him while he
was in custody after he had invoked his right to counsel, we grant
him a COA as to that issue. We also grant Soffar a COA as to (1)
his claim that the State violated his Sixth Amendment rights by
interrogating him after he had requested and been appointed
counsel, and while he was in custody regarding an extraneous
offense presented during the penalty phase of his murder trial, and
(2) his claim that he was denied effective assistance of counsel
based upon his trial counsel’s alleged failure to investigate,
develop, and present available evidence with respect to the
surviving witness’s statements to police or with respect to
ballistics evidence. Because we have also determined, based upon
the undisputed facts and for the reasons discussed herein, that
Soffar's conviction and sentence for capital murder are
constitutionally infirm by virtue of the State’s violation of
2
Soffar’s right to counsel during custodial interrogation, we
reverse the district court's order granting the Director's motion
for summary judgment and remand this case to the district court for
entry of an order (i) granting Soffar’s application for writ of
habeas corpus, (ii) setting aside Soffar’s conviction and sentence
for capital murder, and (iii) ordering Soffar’s release unless the
State commences a re-trial of Soffar within 120 days. Our decision
today renders MOOT all motions pending in this Court.
I. BACKGROUND
We have conducted an independent and exhaustive review of the
entire record of this case. The following extensive factual
background is taken primarily from the facts found by the state and
federal habeas courts, but we have also included those additional
relevant facts which, based upon the record before us, we find to
be undisputed. We note at the outset that this case involves a
peculiar and unique set of factual circumstances the likes of which
no court has yet seen, nor likely ever will see again.
A. The Offense
In either the late evening hours of Sunday, July 13, 1980, or
the early morning hours of Monday, July 14, 1980, four young people
were each shot in the head during the course of a robbery at the
Fairlanes-Windfern Bowling Alley, located at 14441 Northwest
Freeway, approximately 13.5 miles northwest of downtown Houston,
3
Texas. The victims included Stephen Allen Sims, a young male who
was the assistant manager of the bowling alley; Tommy Temple, a
young male employee of the bowling alley; Arden Alane Felsher, a
young female non-employee; and, Gregory Garner, another young male
employee of the bowling alley. Garner was the only victim who
survived.
During the night immediately preceding the robbery-murders,
the Windfern Bowling Alley had been burglarized.2 The side door of
the bowling alley, which was broken by the burglars to gain entry
the night before, had not been fixed by the next evening and could
not be locked. As a result, at around 7:30 p.m. on the night of
the 13th, Jim Peters, the manager of the bowling alley, asked Greg
Garner and Tommy Temple, to stay late after closing to keep an eye
on the premises, at least until the early morning cleaning crew
arrived at approximately 4:00 a.m. At approximately 9:30 p.m.,
Garner moved his car across the street into the parking lot of the
Houston First Church of God, which was directly across the
Northwest Freeway3 from the bowling alley, so that after closing it
2
At the time of the robbery-murders in this case, two of the
four suspects from the previous night’s burglary of the bowling
alley were still at large, though they were apprehended within a
day or two of the robbery-murders. The other two suspects had
already been arrested for the burglary. The four youths who were
involved in the burglary the night before disavowed any knowledge
of, or association with Max Soffar or his alleged accomplice Latt
Bloomfield.
3
At the time of the robbery, the Northwest Freeway was a four-
lane, divided highway with two one-way outbound lanes (which the
church fronted), separated by a grassy median from the two one-way
4
would appear that no one was at the bowling alley. Just as the
bowling alley closed, a robber or robbers entered the bowling
alley, shot the four individuals, and absconded with approximately
$1,000 in cash.
Shortly after the robbery and shootings, at approximately
12:08 a.m., Greg Garner managed to telephone his mother, Nellie
Garner, from the control booth next to where he and the other
victims were lying. He relayed to his mother that someone had been
at the bowling alley and that he needed help. His mother told him
that she was sending his father, Ira Garner, to the bowling alley
and she asked her son if he was all right. After Greg responded
“yeah, I’m all right,” the bowling alley’s other phone line rang
and Greg told his mother that he was putting her on hold. The
other caller was Jim Peters, who was calling to check and make sure
that everything was in order at the bowling alley. Mr. Peters
testified that Garner’s speech was garbled but that Garner told Mr.
Peters either “we, he, or they” made us lay down. Peters, sensing
that something was awry, told Garner that he was going to call the
police. After Peters called the police, he started on his own trip
to the bowling alley. When Greg Garner returned to the phone line
with his mother, he told her again that he was all right and that
the robber or robbers had just left. He answered his mother’s
questions by telling her that he was bleeding from the side of his
inbound lanes (which the bowling alley fronted).
5
head and that he was holding his eyeball. Mrs. Garner then hung up
the phone and headed towards the bowling alley.
After he hung up the phone with his mother, Garner walked over
and laid down next to Arden Felsher, who was the only other victim
still alive at the time. When he laid down next to Felsher, he was
positioned closest to the front door of the bowling alley, just
inside the doors. Garner’s father was the first to arrive at the
scene. When he arrived, he parked his car in front of the building
with his headlights facing the front door. This illuminated the
inside of the bowling alley and he saw four people lying on the
floor. When he honked his horn, he could see his son lift his head
and it was immediately apparent to him that Garner was injured. He
ran inside, comforted his son, and then tried to telephone for help
from the bowling alley phone. He was unable to make the call
because he could not get an outside line. He then drove across the
freeway to the church and asked a woman, who had gathered with
several others awaiting the return of their children from a church
youth trip, if she would call the police. He then returned to the
bowling alley.
As Ira Garner described the scene, his son was closest to the
door on his stomach; Felsher was lying on her stomach, still alive,
next to his son; Sims was lying dead on his stomach next to
Felsher; and Temple was lying dead on his stomach on the other side
of Sims. The first three victims were lying closer to the control
booth where the cash register was located, and Temple was located
6
closer to the concession area.4 Photographs of the crime scene
indicate that, in general terms, Felsher’s, Sims’s, and Temple’s
bodies were positioned in a somewhat semi-circular array, with a
greater distance separating Temple from Sims. Garner was found
aligned next to Felsher, but as discussed below, by his own
account, and consistent with a bullet hole found in the carpet
between the bodies of Sims and Temple, he was lying between Sims
and Temple when he was shot, thus filling the gap in what would
have been a fully semi-circular configuration at the time of the
shootings.
After Ira Garner had arrived back at the scene, Jim Peters
arrived, and he was followed shortly thereafter by Mrs. Garner.
Additionally, two men from the church across the street arrived at
4
Physically, the bowling alley was set up as follows. As one
entered the two sets of glass front doors, a concession area/snack
bar was to the left, and the main control booth/cash register area
was located on the right, approximately 8 feet from the front
doors. Temple’s body was found approximately 15 feet from the left
set of front double doors, with his head pointed towards the snack
area to the left. Garner’s body was found just inside the right
set of front double doors with his head pointed somewhat towards
the front doors-he was located just at the front corner of the
control booth with his feet roughly perpendicular to the booth.
Beyond him was the body of Felsher, who was lying approximately 11
feet inside the right set of doors, next to, and perpendicular to
the control booth, with her head pointed in the direction of the
snack bar. Just beyond Felsher, Sims’s body was found
approximately 14 feet inside the right set of doors, with his feet
positioned next to, and perpendicular to the area of the control
booth with swinging doors providing access to the cash register,
but his torso was angled towards the front doors. While Temple’s
and Sims’s bodies were roughly equidistance from the front doors,
more than 8 feet separated their bodies along the left to right
dimension of the bowling alley. Just beyond the feet of Temple’s
body were the seats in front of the individual bowling lanes.
7
the scene to assist. Felsher was flipped over onto her back to
clear her airway because according to those present, she was
gurgling blood. Police and medical personnel arrived at the scene
shortly thereafter. Dr. Daniel Bethingcord, a second-year resident
from Hermann Hospital, was a member of the life-flight team of
medical personnel that arrived later at the scene by helicopter.
He directed efforts taken over from the fire department EMS
personnel to resuscitate the only two living victims found on
arrival, Felsher and Garner. Felsher was given priority of
treatment because of her critical condition. All efforts to
resuscitate Felsher were unsuccessful and she was pronounced dead
at 1:40 a.m.
Dr. Bethingcord then turned his efforts to treating Greg
Garner, who had previously been determined to be in more stable
condition. Dr. Bethingcord thought Garner had suffered from two
gunshot wounds to the head, but it was “difficult to tell which was
the entrance and which was the exit.” In fact, it was later
determined by Dr. Phillip Gildonburg, the neurosurgeon who
performed surgery on Garner at the hospital, that the bullet which
hit Greg Garner entered just above and in front of his left ear,
and exited just below his left eye. The bullet also caused some
skull fragmentation resulting in embedded bone fragments in a small
portion of Garner’s brain. As result of his injuries, Greg Garner
8
ultimately lost his left eye.5 Once Greg Garner had been airlifted
to the hospital, the police began their investigation of the crime
scene in earnest.
Autopsies later revealed that the victims suffered the
following injuries. Tommy Temple suffered a gunshot wound to the
head which entered the back of his head on the left side and the
bullet remained lodged in his right ear, never exiting his body.
Steven Sims suffered a gunshot wound to the head which entered the
back of his head on the left side and which exited his left cheek;
5
Dr. Gildonburg testified at Soffar’s trial during the State’s
case-in-chief regarding Garner’s injuries. He also testified that,
in his medical opinion, it was “possible” that Garner’s injuries
could have caused him to suffer from a condition known as
retrogressed amnesia. This condition, according to the doctor,
results when the portion of the brain which classifies and stores
recent memory suffers trauma from a concussion. When such a
concussion occurs, memory of events immediately preceding the
trauma can be temporarily, and in severe cases, permanently “wiped
out.” The more severe the trauma, the farther back in time
preceding the trauma might the memory loss be. The doctor conceded
that it is possible that all memory would return and that none
would be lost.
Aside from Dr. Gildonburg’s testimony, no other explanation for
Greg Garner’s absence as a witness, either for the State or the
defense, was presented. As the Texas Court of Criminal Appeals
noted on direct review of this case, “[a]mazingly, the State
presented no direct testimony or evidence at [Soffar’s] trial that
would have accounted for Garner’s absence at trial.” Soffar v.
State, 742 S.W.2d 371, 373 n.1 (Tex. Ct. Crim. App. 1987) (en
banc). We pause here to note that what most accurately accounts
for the State’s failure to call Garner as a witness, as will be
discussed infra, is the fact that Greg Garner’s account of the
details of the robbery and shootings differs radically from the
account of events put forth in Soffar’s confessions. If Garner had
testified at trial consistent with the various statements he made
to the police, his testimony would have significantly undermined
the credibility and accuracy of Soffar’s confessions.
9
he also suffered surface wounds on the front of his chest which
resulted from bullet fragmentation. Arden Alane Felsher suffered
a gunshot wound to the head which entered the front of her face
just under her right cheek and which exited near the rear center of
the top of her head. As stated above, Greg Garner suffered a
gunshot wound to the head which entered the side of his head just
in front of and above his left ear and which exited his left cheek,
just below his left eye. Gunshot wounds were ruled the causes of
Temple’s, Sims’s, and Felsher’s deaths.
B. The Investigation
The crime scene itself was most aptly described at Soffar’s
trial as “contaminated” in the sense that medical personnel
attempting to resuscitate Felsher and Garner disturbed the
positioning of the bodies and left debris scattered throughout the
area surrounding the bodies. Additionally, Garner’s parents, the
bowling alley manager, and two men from the church across the
street entered the crime scene, moving items around and touching
crucial areas of the crime scene. The forensic technicians
testified that they had a difficult time recovering very many
usable fingerprints. Despite this fact, several fingerprints and
one palm print were lifted from the area surrounding the cash
register. It was later determined that none of these fingerprints
matched the fingerprints of either Max Soffar or Latt Bloomfield,
10
Soffar’s alleged accomplice.
Investigating officers who questioned those present at the
crime scene determined that there were no eyewitnesses to the
shootings, but one individual by the name of Frank Karibus told a
Houston homicide detective, G. J. Novak, that from his vantage
point across the street at the church several hundred yards away,
he had seen someone running from the bowling alley and getting into
a small brown car, possibly a Honda. He initially described the
individual as 5'-8" to 5'-9" with blonde shoulder length hair, but
later gave a varying description of the individual he saw. Karibus
was never called as a State witness to identify Max Soffar. Melvin
Neal, the youth pastor at the church testified that it would be
virtually impossible to specifically identify any individual at
night from across the highway.
Investigating officers also learned from pastor Neal that the
church had been burglarized in the late evening hours of that same
night as well. At some point that evening, entry was made into the
church through a pried open door and the church’s main office had
been broken into and ransacked. Crime scene investigators were
dispatched and attempted to lift fingerprints from the church as
well.
During the night of the murders, an interested and curious
local citizen, Richard Civitello, who came to the scene sometime
after he heard about it on his police scanner, pulled into the
parking lot and saw a billfold in the path of his headlights. He
11
stopped, picked it up, and turned it over to investigating officers
at the scene. That wallet belonged to Steven Sims. The very next
day, a truck driver by the name of Andrew Davis, passed by the
bowling alley on the inbound lanes of the Northwest Freeway.
Traffic was bogged down, and as Davis looked out of his window he
noticed a billfold on the pavement next to the grassy median
separating the inbound and outbound lanes, approximately 100 yards
from the bowling alley. The wallet was on what would be the
driver’s side of an inbound vehicle. He pulled over so that he
could walk back and retrieve the wallet he had seen. On his way
back he spotted a second billfold in the same area. One of the
wallets contained some money and both contained various other
papers. Based on the information contained on the identification
cards in the wallets, Davis tried to contact Greg Garner but was
initially unsuccessful. He eventually reached Ira Garner, who
informed him that the wallet belonged to his son, who had been shot
in a robbery the night before. After learning this, Davis called
the police and turned the wallets over to one of three officers
who, the next day, accompanied him back to the location where he
had found the wallets.
Forensic evidence obtained from the crime scene the night of
the murders, and during subsequent investigations of the crime
scene yielded the following evidence. Four bullet holes were found
in the carpeting of the bowling alley. One hole, which contained
a large fragment representing the remainder of a bullet, was
12
located just above the area where Felsher’s head was originally
positioned. A second bullet hole, also containing a large fragment
was located at or just below the location of Sims’s head. A third,
elongated hole was located near Sims’s body, closer to his torso,
accompanied by a dent in the padding of the carpet. A fourth hole
located to the right of Sims’s head contained a bullet embedded in
the padding of the carpet. No bullet hole was found anywhere near
Temple’s body, because the bullet which killed him never exited his
body. And no bullet hole was found anywhere near where Greg Garner
was found lying either. Rather, the extra bullet hole, which was
not closely aligned with any victim’s exit wound as the bodies were
found, was between Sims’s and Temple’s body, and plausibly
represented the point of exit from Garner’s head.6
Homicide detectives pursued all available leads to the fullest
extent, but had little success. The news media reported widely on
the police investigation and reported all pertinent details as they
6
This fact is particularly significant, because as noted infra,
Greg Garner stated to the police that he was lying between Sims and
Temple when he was shot and that his position closest to the door
resulted from his having moved from between Sims and Temple to a
position between the front doors and Felsher after he got up and
called his mother. Also, as noted infra, Soffar’s confession
recites that the victims were shot in the order in which they lay
when they were discovered; that is, male, female, male, male, and
not female, male, male, male as Garner repeatedly explained the
shootings to police. The importance here lies in the fact that the
ballistics evidence better supports Garner’s account of the body
positions at the time of the shootings than it does Soffar’s
confession. These and other inconsistencies between Soffar’s
confession and Garner’s account of events are discussed in Part
I.E. infra, and are summarized in Appendix A to this opinion.
13
became available from the police. For example, as early as the day
after the shootings, the press reported that the bowling alley had
been burglarized the night before, that four victims were shot in
the head, execution style, with the males being shot in the left
side of the backs of their heads, and the female shot in the cheek,
that wallets were found close by, and that money was taken from the
register. The press also reported on the $10,000 reward being
offered by the Fairlanes Company, and later that the reward was
increased to $15,000 by a private donor.
At the scene, Greg Garner was unable to make any statement to
aid in the police investigation. He underwent more than seven
hours of surgery the morning of July 14th and remained in critical
condition for several days. However, as his condition was
improving by July 17th, Garner’s treating physician advised the
homicide detectives that Garner was independently remembering
details of the offense and was alert enough to briefly speak with
detectives. Over a period of four days, Garner spoke with homicide
detectives on four separate occasions, and each conversation was
both tape recorded and transcribed by the police.7 The essence of
7
The state habeas court sustained the State’s objections to the
admission of both the transcripts of Garner’s statements and a
diagram of the victims’ body positions at the time of the shootings
penned by Garner, on the grounds that the transcripts and the
diagram were not relevant since Garner was not called as a witness.
In our view, the state habeas court’s failure to admit these
matters constituted plain and clear error. Furthermore, the
failure to admit these items rebuts any presumption of correctness
to which the state habeas court’s factual determinations regarding
Soffar’s claim that his trial counsel was ineffective for failing
14
each of Garner’s interviews with the detectives is abstracted as
follows:
i. Garner’s July 17, 1980 Statement
On the morning of July 17, 1980, Greg Garner gave his first
taped interview with Houston homicide detectives Miland Kardatzke
and Gil Schultz. This first interview occurred only three days
following his surgery and was relatively brief. The dialogue
contained in the transcript is direct in that the detectives did
not employ either leading or suggestive questions. However, in
this first interview, which had to be cut short, Garner’s responses
can at times best be described as garbled, but he was nevertheless
able to relay to the detectives the following basic information.
At the time of the robbery there were four individuals present
at the bowling alley. Approximately one hour after the doors were
locked, the lone robber, a male individual whom Garner had never
seen before, came into the bowling alley through the front door and
asked all four to lie down near the control booth. Garner
indicated that the robber gained initial entrance into the bowling
alley by convincing the night manager, Steven Sims, that he needed
to investigate Garner’s inconsistent account of the robbery-murder,
would otherwise be entitled because, under 28 U.S.C. § 2254(d)(3),
such a failure to admit these materials would necessarily mean that
“the material facts were not adequately developed at the State
court hearing.” Likewise, the State court’s failure to admit these
materials leads us to conclude that, under § 2254(d)(2), “the fact
finding procedure employed by the State court was not adequate to
afford a full and fair hearing” on the ineffective assistance
claim.
15
to fill a white plastic container with water for his car. Garner
also indicated that Sims and the robber went outside together after
the robber talked his way in and that when they came back in, the
robber directed Sims to get the money out of the register and made
all four of the victims lie down on the floor. After a minute or
so, Garner stated that the robber just started shooting and he
thought he was shot third.
ii. Garner’s July 18, 1980 Statement
At approximately 4:45 p.m. the next evening, Detective
Kardatzke returned with Detective Williamson and Officer Yarberra
to speak with Garner in his hospital room. In this second
interview, which was also taped and transcribed by the police,
Garner’s responses were more articulate, and he added the following
information.
Garner had arrived at work at approximately 5:30 p.m. and
worked until closing. He and Tommy Temple were going to stay
through the night and Steve Sims was going to leave once he
finished his paperwork after closing. Garner recounted how he
moved his car across the street to the church so that it would look
like no one was there. He stated that Sims locked the front door
after closing, but unlocked the door sometime later to let the
robber in.
When the robber first arrived, Garner was bowling on lanes 25
and 26. Garner gathered from the context of Sims’s and the
16
robber’s actions and conversation that the robber needed to fill a
plastic container he was carrying with water for his car. Sims
went out the front door with the robber and they returned a short
time later. When the two men reentered the building, Garner walked
up to see what was going on. He noticed then that the robber had
a gun by his side. Garner stated that the robber took Sims over to
the register to get the money out and that they were all made to
lie down. Then, according to Garner, the robber just shot them,
“boom, boom, boom.” Garner stated that no one screamed or said
anything and that the robber didn’t hit anyone. He recalled
talking on the phone to both his mother and the manager of the
bowling alley whom he referred to as “the head guy.”
Garner initially stated that the robber was a black man, but
later corrected the detectives by stating “no, he was white.”
Garner also described the man as approximately 25-28 years old,
with no hat or mask. He also described the robber as medium build.
In addition to the statement given to the detectives on the 18th,
Garner also identified the relative positions of the victims at the
time of the shootings in a drawing made during this interview.8
His depiction of the victims’ relative positions matches almost
8
Garner’s drawing is initialed by Detective Kenny Williamson,
who was present during the July 18th interview with Garner and who
testified at the state habeas evidentiary hearing as to the
authenticity of the drawing as being Garner’s account of the body
positions at the time of the shootings. Garner’s drawing is
attached to this opinion as Appendix “B”.
17
identically the police photographs of the crime scene, with the
bodies, at the time of shooting, in a semi-circular configuration
ordered as follows: Felsher, Sims, Garner, Temple.
iii. Garner’s July 19, 1980 Statement
On the evening of July 19th, Garner gave his third interview
with Houston homicide detectives Novak and Magan which was taped
and transcribed by the police. Garner reiterated most of the
information previously given to the other detectives; that is, that
Sims let the robber in after he knocked on the door, that the
robber had a container for water for his car and that Sims and the
robber exited and returned.
Garner added that when he first approached Sims and the
robber, the robber asked him if he could open the register, to
which he responded “I don’t know how.” The robber then made him
lie down on the floor. The robber asked Sims if anyone else was
there. Temple and Felsher were called up to the front and the
robber made them lie down on the floor, too. The robber then
stayed in front of the control counter with the gun on everybody
and directed Sims to go empty the register and hand over the money.
After Sims did this, the robber made him come out from behind the
control counter and lie down on the floor just outside of the
swinging doors. Garner stated that while on the floor, no one said
anything to each other, no one screamed, and the robber didn’t hit
anyone. Once Sims was back down on the floor, the robber just
18
paused for a minute, said “good-bye,” and shot everyone.
Garner recounted again how he got up after the robber left and
called his parents, and he remembered the manager of the bowling
alley calling him. He then stated that he went back over and laid
down in a different position than where he had been shot. He
recalled lying down next to Felsher because she was the only one
still alive. Garner surmised that he passed out shortly
thereafter. He regained consciousness when his father arrived at
the scene.
iv. Garner’s July 20, 1980 Statement
Garner gave his fourth interview with Detective Kardatzke and
Detective Ladd the evening of July 20th which was taped and
transcribed by the police. He repeated the same general
information he had given the three previous days but added that the
robber was a little over 6 feet tall, had no facial hair, and had
light brown hair pulled back. No additional information was
provided at this interview.9
9
We note here that, at the police investigators’ request,
Garner underwent hypnosis on August 21, 1980, and a report of that
session confirmed the general information provided by Garner in his
tape recorded interviews of July 17, 18, 19, and 20. Additional
information regarding the taking of wallets and the robber’s
physical description was obtained from this interview. The
following is taken from the written summary report of the hypnotic
interview which was memorialized on the district attorney’s
letterhead and signed by Robert J. Bodisch and B. T. Neff.
The witness stated that he arrived at work at
approximately 4:30 p.m. . . . [A]t approximately 9:30
p.m. the bowling alley manager called and asked him to
19
spend the night at the bowling alley. The witness told
the manager it would be O.K. if he could get another man
to do it with him. The witness stated that he then moved
his car to the church across the street. He stated he
moved his car so that nobody could see it. He stated
that the manager also talked to Tommy about staying. The
witness stated that at 11:30 p.m. they were getting ready
to close, the customers had left, and at that time Tommy,
Steve, Elaine [sic] and himself were the only persons
left in the bowling alley. He stated that he was at the
bowlers stand on lane 25-26 with Elaine [sic] and he
noticed Steve letting a guy into the front door. The
witness stated that he had never seen the guy before, he
had dark hair, a little bit curly around the shoulders,
parted down the middle, clean shaven face. He stated
that he did not pay much attention to the guy because he
thought Steve knew him. He stated that the guy went
outside but came back in[;] at this time he finished
bowling and was walking to the counter. He stated that
Steve and the other person were next to the counter. The
witness stated that as he walked up to the counter the
guy asked him if he could get the money out of the
register. He stated that the guy had a gun in his right
hand. The witness stated that he told the guy he
couldn’t get the money out of the register. The guy then
asked if he had his wallet and the witness replied no.
The witness was then told to lay on the floor. The guy
then asked Steve if anyone else was in the place and he
replied yes. The witness further described the guy as 6
feet, 170 lbs., dark hair, skin was white, clean shaven,
curly hair-shoulder length-pretty long, average build
wearing a short sleeve shirt. The witness stated that
Steve then went to the middle of the counter and called
Tommy to come up to the front. Tommy and Elaine [sic]
both arrived and laid down next to the witness. Steve
and the guy then went to the register and got the money
and then Steve laid down beside the others on the floor.
The guy then again asked for this witnesses [sic] wallet
and this time the witness took it out of his back-pocket
and placed it in front of his head. The witness stated
that the guy told them they only had 10 or 15 seconds
left, and that the guy was nervous. The witness stated
that the guy shot us. He stated he heard one maybe two
shots before he was shot, and that he was not the last
one to be shot. He stated, “I don’t know why he shot, he
didn’t say anything.” The witness stated that the man
who shot him was the same man that came in the first time
20
v. The Composite Drawing
In addition to the information Garner provided to the
investigators about how the robbery occurred, he was also able to
assist a police artist in developing a composite drawing of the
lone perpetrator. Along with the composite drawing, on July 30,
1980, police released Garner’s description of the perpetrator as a
white man between 25 and 30 years of age, 6'-2", 160 to 185 pounds
with brown to dark brown hair worn combed back in front and over
the ears, but not touching the collar.10 The composite drawing and
Garner’s description were widely publicized in the newspaper and on
the local television news.11
It is apparent that despite the alleged “retrogressed amnesia”
which the State suggested at Soffar’s trial rendered Garner’s
memory unreliable, detectives relied on the credibility of Garner’s
after they closed.
This hypnotic interview was conducted approximately two weeks
after Max Soffar was arrested and charged for capital murder of
Felsher, and after Garner was unable to identify Max Soffar in a
line-up.
10
Garner assisted in the production of a second composite
drawing of the same perpetrator on August 5, 1980, the day Max
Soffar was initially arrested for theft of a motorcycle and first
questioned regarding the bowling alley murders. Despite this, he
was unable to identify Soffar in a line-up on the next day, August
6.
11
Indeed, Max Soffar’s sister, Jackie Carney, testified that at
some point between July 14th and August 5th, and while in her car
en route to her doctor, Soffar said “Jackie, you know that
composite drawing that I seen on the news, . . . that looked kind
of like Latt [Bloomfield], and that would be an easy way to get a
$10,000 reward would be to say that Latt did it.”
21
statements and composite drawings obtained therefrom throughout
their investigation and up until the time that Soffar was arrested.
Police statements to the press included the investigators’ firm
belief that they were looking for one unknown white male “hi-
jacker” matching Garner’s description who talked his way into the
bowling alley by feigning car trouble. After initially receiving
over 250 calls in regard to publication of the composite drawing,
by August 4, 1980, the exhaustive police investigation into the
bowling alley murders had few if any promising leads.
C. Enter Max Soffar
On August 5, 1980, at approximately 8:00 a.m., a League City,
Texas police officer, Raymond Willoughby, observed Max Alexander
Soffar traveling approximately 57 miles per hour on a motorcycle in
a 45 mile per hour speed zone on the westbound side of West 518 in
League City, Texas.12
After clocking Soffar’s speed from the eastbound side of West
518, Officer Willoughby turned his marked patrol car around and
followed Soffar for approximately a quarter of a mile until Soffar
pulled into a driveway, dismounted the motorcycle, and proceeded to
the side door of the house. Officer Willoughby got out of his
patrol car, identified himself as a law enforcement officer, and
12
League City, Texas is located in Galveston County, Texas, and
lies approximately 23 miles southeast of downtown Houston, on the
east side of Interstate 45.
22
asked Soffar if he could see his driver’s license. Soffar stated
that he did not have it with him. He gave the officer the name
Mark Scott and a false birth date. The officer asked his
dispatcher to run the information Soffar provided to see if Mark
Scott had a valid driver’s license. The dispatcher responded that
the computer was down and she was unable to verify a license at
that time. The officer then asked the dispatcher to run the
license plate on the motorcycle and she returned with information
that the license plate was registered to a different individual and
was for a Suzuki motorcycle, not the Honda motorcycle Soffar was
riding. The officer got the vehicle identification number (“vin”)
off of the motorcycle and had the dispatcher run that information
to determine to whom the Honda motorcycle was in fact registered.
The dispatcher relayed to the officer that a Honda motorcycle with
that vin was reported stolen out of Friendswood, Texas.13 Having
decided that he would be placing Soffar under arrest for auto
theft, Officer Willoughby requested that the dispatcher send back-
up officers to the scene.
i. Arrest and Initial Interrogation
Officer Willoughby advised Soffar that he was going to place
13
Friendswood, Texas is located in Galveston County
approximately 20 miles (as the crow flies) or 23 miles (by
highways) south of downtown Houston, and northwest of League City
on the west side of Interstate 45. League City and Friendswood are
approximately 35 miles away from the Fairlanes Bowling Alley where
the murders occurred on the opposite side of Houston.
23
him under arrest for auto theft. After doing so, he read Soffar
his standard Miranda14 warnings from a card bearing the text of such
warnings. Once the back-up officers arrived, Soffar was handcuffed
and his pockets were emptied onto the hood of the patrol car.
Recovered were a few items of jewelry, several foreign coins, bits
of paper, and a small amount of marijuana in a plastic bag. While
the officers waited for a wrecker to arrive and tow the motorcycle
to the League City Police Department, Soffar was placed in the back
seat of the patrol car.
While Soffar was waiting in the back of the patrol car,
Sergeant James Palmire from Soffar’s hometown of Friendswood
arrived at the scene because the motorcycle involved was reported
stolen from Friendswood. Palmire, who had a historically
antagonistic relationship with Soffar,15 testified that he leaned
into the front window of the patrol car, advised Soffar of his
rights, and at some point stated, “I’ve got you now, punk.”
Once the wrecker had removed the motorcycle, Officer
Willoughby drove Soffar to the League City Police Department for
booking. En route to the police station, Soffar was talkative. He
stated to Willoughby that he “wasn’t going to jail for some little
14
Miranda v. Arizona, 86 S. Ct. 1602 (1966).
15
During a prior arrest of Soffar not long before the
motorcycle theft arrest, Palmire had stated to Soffar that the next
time he caught him, he’d put Soffar away for life as a habitual
offender.
24
motorcycle theft” and that if he was going to jail it was going to
be for bigger things, so they better check Houston. He also stated
that he had knowledge of the then-notorious bowling alley killings
in Houston.16 Soffar also asked to talk to Bruce Clawson, a
detective in the Galveston County Sheriff’s Organized Crime Unit,
because Soffar had been an informant for Clawson. Officer
Willoughby did not respond to any of Soffar’s statements, other
than to say that he would see if they could get Clawson over to see
him.
When they arrived at the League City Police Department,
Willoughby took Soffar to the booking room and began processing the
paperwork for the auto theft arrest. Willoughby informed his
supervisor, Lieutenant Steve Johnson, of Soffar’s “bigger things in
Houston” comment. Lieutenant Johnson immediately notified the
Houston police, and because he was aware that Bruce Clawson had an
extensive relationship with Soffar and would be helpful in getting
Soffar to talk with Houston detectives, he called Galveston County
Sheriff’s Office in order to have Clawson report to League City.17
16
In a letter later written to his counsel regarding the
charges pending against him, Soffar stated that he was willing to
tell the police that the composite drawing he had seen on the
television looked like his running buddy, Latt Bloomfield, in order
to get even with Latt for allegedly stealing some of his mother’s
silver and to hopefully help get himself out of trouble on the
stolen motorcycle charge.
17
On another previous occasion, Lieutenant Johnson had agreed,
at Clawson’s request on Soffar’s behalf, to talk to a judge about
a ticket Soffar had received in League City. This formed the basis
of Johnson’s knowledge regarding the special relationship between
25
Lieutenant Johnson stated, “I believed that Max trusted Bruce . . .
and would talk to other officers attempting to interrogate him if
Bruce were present.” Houston police officers, together with an
Assistant District Attorney, Terry Wilson, quickly came to the
League City Police Department to interrogate Soffar, and Clawson
showed up shortly thereafter. Before Clawson arrived, Soffar was
taken to Lieutenant Johnson’s office and was questioned by Johnson
and some of the other officers. By the time Clawson arrived at
9:45 a.m., Soffar was in a holding cell.
ii. Enter Bruce Clawson
Sergeant Bruce Clawson, at that time an undercover detective
in the Organized Crime Task Force of the Galveston County Sheriff’s
Office, stated that he was summoned by Lieutenant Johnson to be a
“friendly face” for Soffar in the sense that he would “hold
Soffar’s hand,” in an effort to convince him that “he should talk
to the Houston detectives.” Clawson was asked to find out what
Soffar knew and to “get him to talk.” His activity log for August
5, 1980, which he used to account for where he traveled in a
particular day, reflected his notation that “Soffar refused to
talk, so Lt. Johnson called me [to League City].” According to
Clawson’s affidavit filed in the state habeas court, “Max
definitely trusted me and thought of me as a friend. All in all,
I was used to get Max to talk.”
Soffar and Clawson.
26
The friendship between Soffar and Clawson was not a two way
street. Clawson stated that “Max might have considered me a friend
but I didn’t consider him a friend . . . my primary job as a police
officer was to get Max to talk.” Clawson had gained Soffar’s trust
over a substantial period of time during which Clawson would use
Soffar as an informant to assist in arranging undercover drug
purchases. Soffar had a history, not just with Clawson, but with
the entire Friendswood Police Department and that history involved
his hanging around the station house on a regular basis trying to
befriend the officers.18 Of his police officer relationships,
Soffar considered Clawson to be his best police friend.
On August 5, 1980, at approximately 9:45 a.m., Clawson arrived
at the League City Police Department, found Soffar in a holding
18
Most of the officers at the Friendswood Police Department
described Soffar as a “puppy dog” who was always around and under
foot. Universally, they regarded him as being brain damaged from
drug abuse and unable to think much farther ahead than the present
day. Soffar was described as eager to please and eager to get
along with the police. Mike Clawson, a police officer and brother
of Bruce Clawson, stated in his affidavit that Max Soffar, who was
very often in trouble with the law, also had a reputation for
confessing to crimes he did not commit either for attention or to
get himself out of trouble on unrelated charges. Mike and Bruce
Clawson both agreed that “Max knew how to trade information for
something he wanted,” and that he knew how to read between the
lines in answering questions to tell officers what they wanted to
hear. Mike Clawson testified that if you let on about unknown
details of a crime, Soffar would adopt the details and repeat them
back as part of his statement. As an example of how Soffar was
easily led into telling police what they needed to hear, he
recalled how during an investigation into an auto theft Soffar
committed, in which Soffar could not account for how he got the
keys, Mike Clawson asked Soffar whether he got the keys off of the
table or out of the owner’s jacket pocket. Soffar responded, “off
the table,” and he signed a confession to that effect.
27
cell, and had a brief conversation with him. Shortly thereafter,
Clawson accompanied Officer Willoughby and Lieutenant Johnson as
they transported Soffar just up the street for an appearance before
a magistrate judge on the motorcycle theft charge. Clawson had
suggested that Soffar be given his warnings by a judge.19 It is
undisputed that at his appearance before the magistrate, Soffar was
read each of his Miranda rights by the judge and signed a form
acknowledging his understanding thereof. Soffar was returned to
the League City Police Department by 10:15 a.m.
Approximately fifteen minutes after returning from the
magistrate, Clawson had a second conversation with Soffar at the
beginning of which he recited the Miranda warnings to Soffar
himself. This conversation, which lasted approximately 30 minutes,
occurred at the request of one of the numerous detectives who had
19
In his affidavit filed in the state habeas court, Bruce
Clawson stated that his philosophy with regard to giving the
Miranda warnings at that time that he did it right away because
once a suspect had been given the warnings or “magistrated” he was
“fair game.” Another of Clawson’s philosophies was to “push the
envelope” with respect to investigatory matters. In his affidavit,
Clawson specifically stated that, with respect to using informants
like Soffar as tools:
My philosophy as a cop was that it was a war and that
police officers, judges and defense lawyers had different
roles to play. My job as a police officer was to fight
the war with all tools at my disposal and to do so right
up to the line of what the courts permit. I agreed with
the philosophy of a statement attributed to [Assistant
District Attorney] Terry Wilson that “you can’t try the
admissibility of a piece of evidence that you don’t
seize.” If I went too far, that was up to the judge to
correct. The judge had his job to do and he would do it.
28
questioned Soffar immediately after he was returned from the
magistrate. According to Clawson, his job was “to go down and hold
Max’s hand.” The conversation began with a joke to put Soffar at
ease and continued with light discussion of the stolen motorcycle
charge Soffar had been arrested on. They also discussed briefly
the bowling alley offense and Soffar mentioned Latt Bloomfield, an
individual known to Clawson as the son of a Houston detective whom
Soffar had frequently run around with committing petty crimes and
small robberies, and whom had a wide-spread reputation for
violence. Soffar then told Clawson that he did not like, and did
not want to have to talk to either Officer Palmire or the Assistant
District Attorney, Terry Wilson.
In this second conversation, Clawson informed Soffar that the
bowling alley offense was serious and that, while he did not know
what the minimum would be for such a crime, he knew the maximum
could be death. He told Soffar that “there is no way this is going
to be easy.” Soffar ultimately agreed to talk to Houston police
detective Gil Schultz, whom Clawson introduced to Soffar. Clawson
remained in the room for the first 10 to 15 minutes of Schultz’s
interrogation.
According to his state habeas testimony, Clawson observed
Schultz hand Soffar a piece of paper and ask him to draw a map of
the bowling alley. Soffar drew a rectangle, but was unable to
provide much detail. After that, Clawson stated that Schultz and
Soffar both participated in marking the finer details of the
29
building. His recollection was that Shultz added the details
regarding the turnaround between the inbound and outbound lanes of
the highway and the fact that there were two entrances to the
bowling alley, and that Soffar had no knowledge of either the
turnaround or the fact that each side of the highway was a one-way
feeder-type road. Clawson also stated that Soffar was apparently
unable to properly identify which side of the Northwest Freeway the
bowling alley was on, and that Schultz drew the control counter on
the diagram for him. It was Clawson’s opinion that Soffar had no
knowledge of the bowling alley’s location because he was completely
unable to draw the map.20 Shortly after observing the attempts to
20
In his affidavit, Bruce Clawson stated that he had no
confidence in what Soffar was relaying to Schultz and that he
considered Soffar’s account to be nothing more than a “bill of
goods.” He refrained from intervening, however, because “it was a
Houston, not a Galveston, case and it would have been bad form for
me to intrude myself in the interrogation.” Yet, Clawson was so
disturbed and concerned that Soffar might be setting himself up to
falsely confess to a crime, that he decided to voice his concerns.
In his affidavit he went on to state:
Nonetheless, I subsequently got into a heated argument
with Detective Schulz [sic] in the hallway, in which I
forcefully told him all of my concerns and my doubts
about the truth of what Max was saying. He was unmoved.
I also raised all these matters with Terry Wilson. He
told me not to worry about it.
Mike Clawson expressed similar concerns to the State’s
prosecutor, Andy Tobias. In his affidavit, Mike Clawson recalled:
I told Mr. Tobias what my worries were. I was quite
emphatic. I remember I said that if all they were
relying on was statements from Max without unmistakable
corroborating evidence then I would definitely doubt that
Max was involved.
30
draw a map, Clawson left Schultz alone with Soffar.
Clawson remained at the League City Police Department, and 30
to 45 minutes after he had left Soffar alone with Shultz for
interrogation, Schultz emerged from the interview room and told
Clawson that he had “hit a brick wall” and that Soffar was refusing
to talk again. Schultz asked Clawson to talk to Soffar again so as
to “reassure him and communicate to him that he should talk to the
Houston detective.”
Clawson then went in to speak with Soffar again privately.
This third conversation lasted approximately 45 minutes and is by
far, the most critical dialogue relevant to our disposition of this
appeal.21 Soffar was more nervous when Clawson went back in to see
Neither Bruce nor Mike Clawson was contacted by Soffar’s trial
counsel, though Mike Clawson fully expected to be. In his
affidavit, Mike Clawson stated:
Given the questions I raised with Mr. Tobias I was not
surprised that the State did not call me as a witness.
I was surprised, however, that Max’s defense lawyers did
not contact me or, to the best of my knowledge, anyone
else in the local community, law enforcement or
otherwise. Folks knew what kind of a person [Soffar] was
and what his problems were. In my experience, the
defense attorneys’ failure to talk to any of us in this
situation is inexplicable.
21
We note here that the only testimony about this conversation
came from Bruce Clawson himself and his testimony is undisputed.
Like the great majority of the questioning of Soffar, no tape
recording or transcription of this private conversation was made,
and thus only Max Soffar and Bruce Clawson know what was said.
Clawson’s brother, Mike Clawson, did enter the room during Bruce
Clawson’s and Soffar’s private conversation to bring them lunch.
Bruce Clawson had called his brother, a police officer in Alvin,
Texas, which is located in Brazoria County, who came in an effort
to get information on several stolen vehicles from his
31
him. Clawson first engaged Soffar in some preliminary small talk
and then asked, “what’s the problem?” or words to that effect.
Soffar responded with a question of his own. According to Clawson,
Soffar asked whether he should get an attorney or talk to the
detective. Regarding Soffar’s inquiry about getting a lawyer,
Clawson stated in his State habeas affidavit:
That [question] prompted a crisis of conscience on
my part. I understood Max to be asking my advice
as a friend. However, my job as a police officer
was to get Max to talk. . . . [T]he Houston police
were extremely interested in pursuing this lead to
the maximum and [] they expected me to get Max to
talk, and not to derail their investigation by
advising the only lead to consult a lawyer.
Because of this crisis of conscience, I replied to
Max's question by asking him whether he was asking
me as a cop or as Bruce. Max didn't appear to
understand what I meant. I then told Max the
detectives were serious and that the maximum
penalty for the bowling alley killings was death.
Max again did not seem to appreciate what I was
saying. He asked me again what I should do, talk
to the detective or get a lawyer.
At this point, I had done all I could do as Max's
friend, to alert him to how serious things were.
My obligation as a police officer was to keep Max
talking. Although I do not recall my precise
words, I told Max that if he was involved in the
crime he should tell the detective he was in it;
otherwise, he should get a lawyer.
Max then asked me how he could get a lawyer. I
asked Max if he could afford to hire a lawyer on
his own. Max laughed at this because I knew, and
he knew I knew, that he did not have any money to
hire a lawyer on his own.
jurisdiction. By all accounts, Mike Clawson was in the room for
only a few brief moments and did not witness any of the substantive
discussions regarding Soffar’s inquiries about a lawyer.
32
Then Max asked me how he could get a court-
appointed lawyer and when he could get one. I told
him that I didn't know Harris County procedures and
that it could take as little as a day or as long as
month.
Max responded by spitting in the trash can and
saying “so you're telling me I'm on my own.” I did
not respond to or disagree with this statement;[22]
Max had already been given his rights by the
judge.[23]
I asked Max if he would talk to the cops. Max said
that he would.
Clawson confirmed the sequence of his and Soffar’s dialogue in
this colloquy during his re-direct testimony at the state habeas
evidentiary hearing. As a result of this colloquy, Soffar started
speaking again with the investigating detectives, and over the
course of three days of on-and-off interrogation, he gave three
written statements implicating himself and Latt Bloomfield in the
bowling alley robbery-murders.
iii. Clawson’s Precise and Concise Trial Testimony-
Half the Picture
Despite all of the foregoing, Bruce Clawson initially made a
strong witness for the State. Both in his testimony at the Jackson
22
Clawson elaborated on this point during his state habeas
testimony that in response to Soffar’s statement “I guess I’m on my
own,” he replied affirmatively “yes, you are.”
23
This statement was consistent with Clawson’s philosophy of
giving the Miranda warnings right away or having the suspect
“magistrated” right away, so that once given, a suspect would be
“fair game.” See supra note 19.
33
v. Denno hearing24 on the admissibility of Soffar’s written
statements and at the trial itself, Clawson answered only the
questions put to him by the prosecuting attorney Andy Tobias
without elaboration. In short, his testimony at these hearings
was technically accurate, but it was not the whole truth. No
information regarding Soffar’s questions about getting a lawyer was
presented to the jury. Clawson answered only the narrow question
put to him, “did Soffar ask for an attorney?” His response was
that “no, Soffar did not ask me for an attorney.” And when asked
if Soffar had any questions about his rights, Clawson stuck to an
understanding he had with the prosecutor to narrowly interpret that
question as relating only to the period of time immediately
following the reading of his Miranda rights. His response was “no,
he did not have any questions about his rights [then].”
The nutshell of his trial testimony was that he was called to
help put Soffar at ease and to be a friendly face for him because
of their prior relationship. He testified that he read Soffar his
Miranda warnings, that he did not coerce or threaten Soffar, and
that neither did any other officer. He said he told Soffar that
the bowling alley offense was serious and that the maximum penalty
was death. He accompanied the other officers when they took Soffar
to the magistrate judge to have his warnings read to him. He
24
See Jackson v. Denno, 84 S Ct. 1774, 1781 (1964) (a defendant
has a right "to have a fair hearing and a reliable determination on
the issue of voluntariness [of his statement].").
34
testified that Soffar’s refusal to talk was a refusal to talk with
particular officers, namely Palmire and Assistant District Attorney
Terry Wilson.
As a result of painting his testimony with such a narrow
brush, no information regarding Soffar’s subsequent questions about
his right to have an attorney made it to the judge ruling on the
admissibility of Soffar’s subsequently obtained written statements
nor to the jury. Clawson, without question, technically provided
accurate responses to the questions put to him, but he kept
substantial other parts of the picture to himself, and from the
jury, because he was not specifically asked.
iv. Clawson’s Habeas Testimony-
A Different Picture
The repressed portions of the truth regarding Clawson’s
dialogue with Soffar finally saw the light of day when Clawson was
interviewed by Soffar’s habeas counsel and executed his affidavit,
which was filed with the state habeas court. Using the broader
brush of telling the whole truth, Bruce Clawson painted a very
different picture of his dealings with Soffar than the one which
was exhibited at the suppression hearing and trial. In very candid
detail, Clawson’s undisputed affidavit account of his private
conversation with Soffar portrays a previously undeveloped scene in
which Soffar specifically inquired about his right to have counsel
present to assist him in dealing with the interrogating homicide
detectives from Houston.
35
The following is a summary of the pertinent information added
to Clawson’s previous testimony through his undisputed affidavit
and state habeas evidentiary hearing testimony. Clawson
acknowledged regret over not responding differently to the
questions Soffar asked. Indeed, he noted that he no longer
responds to questions from suspects about whether they should talk
to a lawyer with the standard response he used then, which was “if
you are guilty talk to the police, if you are innocent then talk to
a lawyer.” Instead, he quickly and firmly advises any suspect who
asks him that when dealing with the police you should have a lawyer
and that if you’ve been arrested, you “darn sure” better have a
lawyer. By his own account, at least with respect to answering
these types of questions, Clawson has abandoned the “push-the-
envelope” philosophy he subscribed to at the time he talked with
Soffar on August 5, 1980.
Clawson also explained in the habeas proceedings that at the
time of his talk with Soffar, he felt pressure from the Houston
detectives not to screw up and “derail their investigation” by
having their only solid lead ask for counsel, and that he suspected
that the detectives did not want him to interfere in their
investigation.25 As a result of this pressure, Clawson testified
25
His suspicions were confirmed when he expressed concerns
about whether Soffar knew anything about the bowling alley murders
to Detective Schultz and Assistant District Attorney Terry Wilson.
He stated that Schultz was “unmoved” by his concerns and that
Wilson responded to those concerns by telling him “not to worry
about it.”
36
that he “derailed [Soffar’s] inquiries about the subject of
obtaining a lawyer,” and that he “took steps to keep Max talking
instead of seeking to slow things down for him so that he could
understand what was happening.” Specifically, Clawson knew that
Soffar did not have enough money to retain private counsel when he
implied to Soffar that he would have to pay for his own attorney if
he wanted one. Clawson testified that he also knew about Houston’s
72-hour rule under which a suspect had to be either charged or
released within 72 hours of arrest. Finally, Clawson knew that
Soffar could demand that all questioning stop until he could get an
attorney and that Soffar did not have to be “on his own” when
Clawson responded “yes, you are” to Soffar’s question, “so, I guess
I’m on my own?”
With respect to Clawson’s relationship with, and history of
dealing with Soffar, Clawson acknowledged that given Soffar’s
mental limitations and tendency to talk himself into trouble in
order to gain police favor or to get out of trouble for an
unrelated offense, he thought that Soffar was especially in need of
an attorney to help him deal with the detectives investigating the
bowling alley murders. Notwithstanding this special knowledge,
Clawson explained that at the time, as a result of the pressure put
on him by the Houston detectives to “get Max to talk,” he was
dealing with Soffar “as a police officer” and not as his friend.
And Clawson acknowledged both that Soffar was seeking his advice as
a friend, and that he knew based on the nature of that relationship
37
that Soffar would “follow his lead.”
In the state habeas proceedings, Clawson was also very candid
about his conscious effort to narrow the scope of his testimony at
the Jackson v. Denno hearing and at trial. He acknowledged
construing questions narrowly and answering them literally, without
elaboration. In his state habeas testimony, Clawson stuck by his
answers at the trial, stating that he would answer the same narrow
question, “did Soffar ask for a lawyer?,” the same literal way
today, i.e., “no, he did not ``ask for’ a lawyer.”26 In his State
habeas testimony he reiterated, “I was asked [at trial] if Max
Soffar asked for an attorney and my answer was no he did not ask
for an attorney and still would be no he did not ask for an
attorney.”
The most crucial addition to Clawson’s prior testimony came
during Soffar’s habeas counsel James Schropp’s re-direct
examination of Clawson at the state habeas evidentiary hearing.
The relevant colloquy begins with a question from Schropp:
Q. Did you draw any . . . conclusions based on
everything you heard and observed from Max and
everything you observed with regard to his
situation . . . . What did you conclude that Max
26
His defense of and efforts to reconcile his previous trial
testimony with the new information presented in the habeas
proceedings was likely the result of the fact that on cross-
examination at the state habeas evidentiary hearing, counsel for
the State made specific reference to Section 37.03 of the Texas
Penal Code, implying that if he [Clawson] were to testify
differently than he had at the trial or the Jackson v. Denno
hearing, he might be admitting to aggravated perjury.
38
wanted at that point?
A. What did I conclude?
Q. Yes.
[Assistant State’s Attorney] FLEMING: If
anything, Your Honor, if he wanted anything.
THE COURT: Yeah, if he did.
A. Well the obvious answer is he wanted an attorney.
MR. SCHROPP: That’s the obvious answer. Thank
you sir.
QUESTIONS BY MS. FLEMING:
Officer Clawson that seems a bit inconsistent
with what you -
MR. SCHROPP: I’m sorry I’m not finished.
MS. FLEMING: I apologize.
MR. SCHROPP: That’s okay.
THE COURT: That’s your answer now right sir.
You said that’s the obvious answer is that he
wanted an attorney?
WITNESS: Yes sir within the context of his
question yes, sir.
When asked by Ms. Fleming shortly after this colloquy if he
was “a little confused now,” Clawson responded, “not as much
confused as slightly disappointed in myself for not doing things
differently.”
D. Interrogation and the First Three Written Statements
With Clawson having insured that Soffar would be willing to
talk to the investigators without invoking his right to counsel,
39
the detectives resumed interrogation of Soffar. Over a period of
three days following his arrest on the stolen motorcycle charge,
while he was in custody and without counsel present, Soffar would
sign three written statements, prepared by detectives, in which he
implicated himself and Latt Bloomfield in the bowling alley
robbery-murders.
i. August 5, 1980 - The First Statement
After Clawson’s efforts to get Soffar to continue talking were
successful, Detective Schultz interrogated Soffar for an additional
two hours.27 At 3:30 p.m. on August 5, 1980, Soffar signed a
written statement prepared by Detective Schultz. The statement was
identified as State’s Exhibit 108, and while not introduced into
evidence by the State, it was used against Soffar during the guilt
phase of his capital murder trial. In this first statement, Soffar
stated the following. He and Latt Bloomfield went to the bowling
alley one night in the first part of July and he entered through a
side door and checked the cash drawer. Latt asked him to return
the next night with his pistol, but he told Latt he wasn’t going to
do it. He did, however, later agree to drive Latt to the bowling
alley and wait outside. While he waited in the car outside the
front door, he saw Latt move some people around and he heard two
27
Soffar was also questioned for approximately 20 minutes by
Assistant District Attorney Terry Wilson, and only this brief
interview was tape recorded that day. Neither a cassette tape nor
a transcript of this brief interview with Wilson is contained in
the record before us.
40
shots when Latt was out of his sight. He then saw Latt make some
people get on their knees. As he moved the car forward, he heard
another shot and then two more shots. He stated that Latt told him
that someone pulled a gun on him. They then went to Galveston
where Latt robbed a U-Totem convenience store and they bought some
drugs.
After giving this first written statement, Soffar was
transported to Houston police headquarters, where he spent an
additional 3 hours with Houston police officers before he was
transported to the jail at approximately 7:43 p.m.
ii. August 6, 1980 - The Second Statement
Beginning shortly after 9:00 a.m. the morning of August 6,
1980, Detective Kenny Williamson mirandized and interrogated Soffar
for approximately 50 minutes in a tape-recorded conversation during
which Soffar relayed more details of the same basic scenario, i.e.,
that he drove to the bowling alley and that Latt did the robbery
and shootings alone.28 At approximately 10:00 a.m., Soffar was
taken to a line-up arranged for surviving witness Greg Garner’s
viewing. Garner failed to positively identify Soffar.29 Soffar was
28
While neither a cassette tape or a transcript of this
conversation is contained in our record, the record does reflect
that during Williamson’s interrogation, he drew a map for Soffar
including significant details, and that the map was then adopted by
Soffar.
29
Garner was also unable to positively identify Latt
Bloomfield, who had been arrested and brought to Houston police
headquarters and placed in a line-up. We pause here to note also
that a search warrant executed on Bloomfield’s residence and car
41
then mirandized and interrogated again by Detective Williamson and
another detective, J. W. Ladd, for approximately 1 hour and 15
minutes before giving his second statement.30
At 2:44 p.m. on August 6, 1980, Soffar signed the second
written statement prepared by Detective Ladd. This statement was
identified as State’s Exhibit 109. As with State’s Exhibit 108,
the second statement was not introduced into evidence by the State,
but was used against Soffar during the guilt phase of his capital
murder trial. In his second statement, Soffar told the same basic
story as he had in his first statement, adding the following
details. The night before the robbery-murders, it was Soffar who
kicked in the glass side door of the bowling alley to commit the
burglary.31 The next day, Latt picked him up at 1:00 p.m. and they
hung out together for the afternoon. That evening they drove back
to the bowling alley at 9:00 p.m., but since there were a lot of
people there, they just parked the car and drank beer until most
everyone had left. Again, Soffar stated that he pulled the car up
yielded no evidence linking him to the bowling alley robbery-
murders. Similarly, a search warrant executed on Soffar’s
residence failed to produce any evidence of Soffar’s involvement.
30
This conversation, like virtually all others with Soffar was
neither tape recorded nor transcribed. Instead, the substance of
these interrogation sessions was summarized by detectives and
presented to Soffar in the form of written statements for his
signature.
31
The police obviously knew this was not true because they had
previously arrested the four youthful perpetrators of the burglary
which Soffar now claimed that he and Latt Bloomfield committed.
42
in front of the doors while Latt went inside of an unlocked front
door. Latt was approached by two people and then another, and he
made these three lie down on the floor right in front of the door.
Latt motioned someone else to come over and then Soffar heard the
first shot. He could see the feet of the people on the floor. He
then heard another and then several other shots. Latt came running
out of the bowling alley with the gun in one hand and the lady’s
stocking he had put over his face when he went in the other hand.
Latt told him that someone pulled a gun on him so he “did what he
had to do.” Soffar added that they went to buy drugs that night
from an individual named “Pops,” and that several weeks after the
robbery-murders Soffar told Pops about the “deal at the bowling
alley.” He asked Pops “if he heard about it and that Latt and I
had done it.”
At some point after signing his second statement at 2:44 p.m.,
Soffar was visited by, and he spoke privately with: his mother,
Zelda Soffar; his uncle, Carl Lander; and his aunt, Celia Nathan.32
Ms. Nathan informed Detective Ladd that the family was in agreement
that Max should cooperate with the police. At approximately 4:00
p.m., Detectives Williamson and Ladd checked Soffar out of the jail
and took him in a patrol car to the crime scene. They pulled into
the parking lot, but did not go inside of the bowling alley. At
32
Celia Nathan was also an attorney who had represented the
Soffars when they had Max Soffar committed to a Texas state mental
hospital in Max’s pre-teen years.
43
approximately 5:30 p.m., the detectives drove Soffar to an area
south of Houston where he took them to the individual named “Pops,”
from whom he and Latt had allegedly purchased drugs the night of
the robbery-murders. Pops was identified as an individual by the
name of Lawrence Bryant. At approximately 7:30 p.m., the
detectives then took Soffar to Galveston where Soffar pointed out
a convenience store Latt had allegedly robbed. Soffar was checked
back into the jail at 10:55 p.m.33
During the time Soffar was riding around with Detectives
Williamson and Ladd, the police released Latt Bloomfield from
custody, citing a lack of any corroborating evidence to justify
charging him in the robbery-murders.
iii. August 7, 1980 - The Third Statement
Beginning at approximately 8:42 a.m. the morning of August 7,
1980, Detectives Tom Ladd34 and Ted Thomas interrogated Soffar for
approximately two and one-half hours. Soffar was also briefly
interrogated that morning by Detective Williamson. That afternoon,
a felony capital murder complaint was filed against Soffar alleging
that he intentionally caused the death of Arden Alane Felsher while
33
In a letter written to one of Soffar’s appointed trial
counsel, Joe Cannon, which is discussed infra at Part I.F.iii.,
Soffar alleged that during this drive around town, the detectives
became forceful with him and told him that Garner had picked him
out of the line-up, so he “might as well say [he] did it and get a
life sentence.”
34
Detective Tom Ladd is the brother of Detective J. W. “Jim”
Ladd.
44
in the course of committing or attempting to commit the armed
robbery of Stephen Allen Sims.
Upset because he had learned that Latt Bloomfield had been
released and because he thought that he was going to be charged
with all three murders alone, Soffar contacted a family member and
asked them to have detectives come and see him at the jail. At
approximately 7:30 p.m. that evening, Detectives Ladd and
Williamson came to see Soffar again. Soffar inquired as to why
Bloomfield had been released and the detectives responded that they
did not yet have enough evidence on Bloomfield to either hold or
charge him. Detective Ladd then began actively interrogating
Soffar for another 30 minutes before beginning to take and prepare
Soffar’s third statement.
At 9:25 p.m. on August 6, 1980, Soffar signed the third
written statement prepared by Detective J. W. Ladd. This
statement, identified as State’s Exhibit 110, was introduced into
evidence by the State, and used against Soffar during the guilt
phase of his capital murder trial. The entire text of Soffar’s
third statement reads as follows:35
My name is Max Soffar. I have been in jail
since Tuesday morning for this bowling alley deal.
I gave two previous statements, one to detective
Schultz and one to detective Ladd. I didn’t tell
the whole truth in those statements and want to now
so that I don’t take this whole thing by myself.
35
This statement is reproduced exactly as prepared. All
scrivener’s errors and omissions are contained in the original.
45
One thing that I didn’t tell the truth on was
that Lat Bloomfield and I did this thing when we
first got to the bowling alley, not like I said
about being there in the parking lot for awhile.
Lat drove in and we were in his brown thunderbird.
Lat pulled right to the front door so that the
passenger side was next to the bowling alley. I
think that there was a couple of cars in the
parking lot when Lat pulled to the door. Lat
pulled a stocking over his hair so that his hair
would be pulled back. I pulled up my t-shirt over
my nose and mouth. Lat had his 357 revolver which
I think is an R-G model. This gun had about a
three inch barrel. He had the gun under his shirt
when we walked in a guy asked what we were doing.
Lat pulled the revolver and stuck it in this guys
face and said, “This is a robbery.” Lat pulled
this guy by the hair and made him get down on his
knees and xx walked up. This was two dudes and a
girl. Lat told them to get on the floor and if
they didn’t do what he told them that he would
shoot this first guy who was already on the floor.
They got down on their knees away from the counter
and Lat made them come back closer to the control
counter and they did. They were laying from the
door so that there was a dude and then a girl and
then another dude and then the last dude. The
second dude was trying to look up and Lat told him
not to be looking and to turn around and lay facing
the way all the others were. He then turned around
so that they were all facing back towards the snack
bar. The second dude kept looking around so Lat
fired a warning shot into the floor. The girl
screamed and then Lat told her to shut up and she
kept screaming. Lat kicked the girl in the back
and then the second dude who was the one who kept
looking up started to raise up. He was about half
way up when Lat shot him in the back of the head.
Then Lat just turned around and shot the third
dude. This third dude was the first one Lat
grabbed and made get on the floor. He shot him the
same way as the first one that he shot. Lat threw
me the gun and told me to shoot the other two. I
hesitated and then he said, “Shoot them now.” I
aimed the gun and the other guy who was still left
who was closest to the door and fired one time. I
hit him in the back of the head behind the ear. I
walked around the other side of them and heasitated
[sic] and Lat said, “Shoot her.” She had her face
46
down and she just looked up at me and I aimed and
turned my head and shot her. I think I hit her in
the cheek. I had the gun and ran around and looked
in the cash register over by where you get the
shoes. I got all the bills and a little of the
change and then went to the office but the door was
locked. I went over to the cash register by the
snack bar and took bills out of it too. I put the
money in my pockets. I went back by the office and
tried to force the door open but I couldn’t get it
opened. Lat was looking under the counter for a
money bag and I think he got 50 or 60 dollars. We
walked over by the office and I told him I thought
I saw some headlights. I went outside but I didn’t
see anyone so when I came back in Lat was rumageing
[sic] through their pockets and took the wallets
out of their pockets. He took the money and I
think that he kept the wallets. We looked around
to make sure that nobody was looking and we didn’t
see anybody. I asked him if he wanted to check in
the back and he said no. So, we looked in the
bathrooms making sure no body was in there. Then
we left. I still had the gun. Lat drove and we
had the windows down to his car. He made a right
on the highway and drove down for a little bit and
then turned around and came back past the bowling
alley. I asked him why he shot the dudes and he
said he shot the dude for raising up and playing
hero. He said he made me shoot the other two so
that I would be as guilty as him if we got caught.
I put the gun under the front seat after I reloaded
it and it only had one live bullet in it before
reloading. I don’t know where the gun is now. The
last time I saw the gun was I believe last Saturday
night and Lat had it at that time. We went to
score some pills and got 24 pills over at the dope
house. These were preludins. After the gas and
pills I got 95 dollars out of the deal and I think
Lat got a lot more. We went to my house and did
some preludin and Lat said he was afraid someone
had seen his car so he went and took it home. He
walked back over to my house that night and we did
the rest of the pills. We stayed up all day and
went out to the park the next day. I was scared
and that is the reason that I did not tell the
whole truth before and I feel like shit and feel
bad about what happened and ought to take my
punishment for it. I think Lat and me both ought
47
to pay for what we did.36
In addition to his written statement, Soffar drew a diagram of
the positions of the victims at the time of the shootings. In the
diagram, Soffar depicted the four victims lying parallel to one
another with their feet aligned along the edge of the control
booth. This diagram was not introduced into evidence during
Soffar’s capital murder trial, but was admitted into evidence by
the state habeas court. It is attached to this opinion as
Appendix “C”.37
E. Inconsistencies Between Garner’s and Soffar’s Accounts
As a factual matter we pause here briefly to note that when
juxtaposed, Greg Garner’s and Max Soffar’s accounts of the robbery-
murders appear dramatically at odds with one another. The numerous
fundamental factual inconsistencies between these two versions of
events are both obvious and striking. The most noteworthy
discrepancies between Garner’s interviews with detectives and
Soffar’s third written statement are summarized in table format in
Appendix “A” to this opinion. This appendix is followed by
36
We note, as did the Texas Court of Criminal Appeals, that
neither this third statement nor either of the two previous
statements, set out “the date, county, city, state, nation, street
address or name of the bowling alley, the name of any victim, or
any other fact which might expressly reflect that appellant’s
statement relates to the offense for which he was tried, convicted,
and given the death sentence.” Soffar v. State, 742 S.W.2d at 375.
37
The witness signatures at the bottom left side of the diagram
belong to Houston detectives R. D. Cain and Miland Kardatzke.
48
Garner’s diagram of the victims’ positions at the time of the
shootings (Appendix “B”), which also differs dramatically from
Soffar’s diagram of the victims’ positions (Appendix “C”).
We also note that the physical evidence in this case supports
Garner’s account of events more than Soffar’s third statement.
With respect to the forensic and ballistics evidence, as discussed
supra, the bullet holes found in the carpeting of the bowling alley
are consistent with the body configuration recalled by Garner, that
is, with him lying between Sims and Temple where he was shot.
There is no physical evidence to support Soffar’s account of Garner
having been shot lying between the front door and Felsher. In
fact, the only unmatched bullet hole, which could represent the
final resting point of the bullet exiting just beneath Garner’s
left eye, is the one between Sims and Temple. Also with respect to
body configuration, the photographs of the crime scene depict the
bodies aligned, not parallel to one another along the edge of the
counter as depicted in Soffar’s account, see Appendix “C”, but in
a semi-circular configuration nearly identical to that depicted by
Garner in his diagram, see Appendix “B”. Indeed, the photographs
show a large vacant space between the bodies of Sims and Temple
where, according to Garner, he would have been lying when shot.
With respect to Garner’s account of how the perpetrator gained
access to the bowling alley by feigning car trouble, a passerby to
the bowling alley, who was never called as a witness by the State,
49
told the police that at approximately 11:50 p.m., he passed the
bowling alley and slowed down because he was looking for a place to
purchase cigarettes, and that he saw a car parked directly in front
of the bowling alley with its hood up. This individual saw just
one person walking from that car toward the front entrance of the
bowling alley. Additionally, one of the police photographs of the
crime scene showed that there was a white plastic water jug like
the one described by Garner as belonging to the robber located on
the control booth counter.38
F. Appointment of Counsel and Pre-trial Developments
On August 8, 1980, the day after Soffar gave his third written
statement, Soffar made his preliminary initial appearance on the
felony capital murder charge before the 232nd Judicial District
Court of Harris County, Texas. During this appearance, the state
court appointed Frederick “Rick” Stover and Joseph “Joe” Cannon to
represent Soffar because of his indigence. These attorneys, who
were present in the courtroom to accept their appointment, were
advised that their client had already signed three written
statements implicating himself in the charged offense. Immediately
after accepting their appointment, defense counsel instructed the
38
The police overlooked the water jug and did not dust it for
fingerprints. The next morning, the bowling alley cleaning crew
recalled seeing it, but removed it and washed it because they
thought it was used by investigators to clean up fingerprinting
dust.
50
State’s attorney that their client was not to be interrogated
regarding pending charges or any other matters unless they were
notified and provided an opportunity to be present.
i. August 19, 1980 - The Fourth Written Statement
Notwithstanding defense counsel’s instruction to the State’s
attorney not to interrogate Soffar without notification, on August
19, 1980, Harris County Sheriff’s detective Earl Bockel removed
Soffar from his cell in the Harris County jail and interrogated
him. Bockel testified that he received information from Houston
homicide detective Jim Ladd on August 15, 1980 that “during a
homicide investigation,” Soffar had admitted to raping a girl in
the Friendswood area sometime around December of the previous year,
1979.39 Bockel checked into the unsolved rape files in Friendswood
and determined that a young woman by the name of Caroline Knight
had been raped on September 23, 1979 in Friendswood.40 Bockel then
39
We note that the information regarding this rape was obtained
by Detective Jim Ladd “when he took a confession statement from Max
Soffar.” Without question, had Max Soffar never been interrogated
by Detective Ladd regarding the bowling alley murders on August 6
and 7, Soffar’s contemporaneous admission to raping a girl in
Friendswood would never have occurred. Likewise, Detective
Bockel’s subsequent investigation, which ultimately yielded a
confession to the rape, would never have occurred. Thus, but for
Ladd’s interrogation of Soffar on August 6-7, prior to his
appointment of counsel, Soffar’s participation in the rape would
not have been discovered.
40
In her statement following the rape, Caroline Knight
described in detail the events of that evening, most notably that
her assailant told her that he had killed three other women and
that she was going to be the fourth, and that as he raped her he
continued to stab a knife into the ground above her head.
51
contacted Ms. Knight and informed her that they had caught someone
who confessed to the rape. He went to her workplace and showed her
a photo spread containing Max Soffar’s and five other individuals’
pictures. Ms. Knight stated that two of the photos, one being
Soffar, looked familiar, but that she was unable to make a positive
identification.
On August 19, 1980, Detective Bockel visited Soffar at the
Houston jail and interrogated him regarding the rape. According to
Bockel, he read Soffar his rights and Soffar said that he
understood his rights and did not want his appointed lawyers
present.41 As a result of this interview, Soffar signed a fourth
written statement implicating himself in the rape of Caroline
Knight.
On August 28, 1980, the State’s prosecutor, Andy Tobias,
requested that Detective Bockel arrange for a line-up to be
scheduled on August 30, 1980. Defense counsel was notified and the
line-up was assembled that morning at 9:45 a.m. Though Ms. Knight
again thought Soffar looked familiar, she was unable to make a
positive identification. According to Bockel’s report following
the line-up, “[u]pon the request of Assistant District Attorney
Andy Tobias, this case is being referred directly to him without
charges.” Accordingly, Bockel indicated that the rape case was
41
It appears from the record, that at the time of this
interview, some ten days following appointment of counsel, neither
Stover nor Cannon had yet been to visit Soffar in the jail.
52
“cleared due to charges filed in other [capital murder] cases,” and
Soffar was never indicted for the rape of Caroline Knight.
During the penalty phase of Soffar’s murder trial, having
twice been told that the police had caught someone who confessed to
raping her, Caroline Knight made an in-court identification of
Soffar as her assailant. During her testimony she recounted how
Soffar stated that he had killed three other women before and that
she was scared when he said that.42
ii. Additional Interrogation
When one of Soffar’s defense counsel made his first trip to
the Harris County jail to interview Soffar on August 21, 1980, he
was informed that he could not see Soffar just then because Soffar
was “being interviewed by a Mr. Armando Simon, an employee of the
Harris County Sheriff’s Office.” The very next day, the 232nd
District Court, upon motion, entered an injunction prohibiting the
Houston Police Department, the Harris County District Attorney’s
42
However, in a subsequent affidavit filed in the state habeas
proceedings, Ms. Knight stated:
because I was not asked, however, I did not testify at
the trial that, after the rape, my assailant told me that
he had done a lot of bad things in his life but raping me
was the worst thing he had ever done. He sounded very
upset and sincere. I believed this statement at the time
and thought he probably made his earlier statement about
the three other women just to scare me.
Ms. Knight further affirmed that she would have testified to that
fact if she had been contacted or asked by Soffar’s trial counsel.
53
Office, and any other law enforcement agency from “questioning,
interviewing, interrogating or in any manner attempting to gain
information from the Defendant, MAX ALEXANDER SOFFAR, about any
cases, whether charges have been filed or not, without first
advising Mr. F.M. Stover or Mr. Joe Cannon . . . and giving them a
reasonable opportunity to be present during the entire questioning,
interviewing or interrogation . . . .”
iii. Soffar’s Letter to Counsel
At some point after first meeting Joe Cannon, Soffar wrote a
letter to Cannon explaining his side of the story. In a
handwritten letter, Soffar wrote43:
This whole thing started when, this detective in
Friendswood said he was going to lock me up cause I
was a habitual criminal. His name is Mr. Palmary.
He’s busted me a few times and he does not like me.
He told me next time I bust you for something bad
I’m going to put you away for the rest of your
life. Well anyway, he busted me the last time for
false imprisonment. Me and a girl had an argument
and she wanted to leave and I wouldn’t let her. So
someone called the police and he talked her or
rather he therened her. She had a 38 snub nose
pistol in her pocket when we were arrested, so he
told her if she didn’t file some charges on me for
kidnapping or false imprisonment, that he would
file on her for a concealed wepon. Then he comes
in and says I got you now boy. So when I got
arrested on that stolen bike I look up and who
drives up, Mr. Palmary, and he’s standing there
with them lueague City police saying, I’ve got you
now punk. So we go to lueague City Jail and I
started thinking well Ill fix you smart ass and I
told them I wanted to talk to bruce Clawson about
43
This letter is reproduced exactly as penned by Soffar. All
scrivener’s errors and omissions are contained in the original.
54
the bowling alley. I knew it would be hell on me
if I said anything but at that point I didn’t care.
I was already on a years probation out of galveston
co. and I’m caught on stolen bike. By the way
that bike had the licence plate on it from another
bike I had stolen. plus I had been on bond from an
auto theft charge from Brazoria County. plus I am
holding pot and some stolen jewels. So I told them
that so palmary couldn’t put his slimy hands on me.
I told my sister when I saw that drawing of the
killer, I told her it looked like latt. he stole
some silver from my house so I was going to tell
the police he did it and get the reward, and get
evan. She told me not to do it so I didn’t. Then
when I got pulled over and I see palmary standing
their I decided to say I knew who did it. Next
thing I know them homicide detectives had me saying
I did it. the truth is I did not kill anyone.
There is a lot more to this than I can write. I
will tell you the whole thing when I see you so you
can check out my side of this to be sure yourself.
Them police had me say what they wanted to hear.
Did you know I took a polygraph test? I was on
acid when I took it.
The night before the robbery, their was a burgurly
at this bowling alley. I told the police the night
before the robbery, I broke into the bowling alley.
That was what I saw on the t.v. so I said in a
statement, me and lat bloomfeild did the burgurly.
When I told them I killed some girl, which was
another lie, they asked me if I really broke in the
night before. I said no. They asked me that
quiestion about 100 times. I put in a statement
that I did. But after they kept asking me that
same question over and over I said no, just to see
what he would say. I did not put in a statement
that I didn’t brake in the bowling alley. I said I
did. Then he told me I didn’t do the burgurly
cause they arrested some kids for it. If I really
did this why didn’t I say I didn’t brake in. Cause
that was what I saw on the news. I thought the
brake in was done by the same person or persons
that did the robbery.
Me and 2 homicide police went out looking at
bowling alleys. They wanted me to point out the
bowling alley we robbed. They were drinking. We
55
stopped 3 or 4 times for cokes for their mixed
drinks! I asked them for some for my nerves and
they said no. But they were drinking and that’s
when they started getting forceful. I made 2 more
statements later that day. I will take a polygraph
test to prove I’m not lying about the drinking or
the force they used. They also told me that greg
gardner picked me out so I might as well say I did
it and get a life seentence. They also asked me
why lat shot the girl in the face before I made the
last 2 statements. I said in one of the statements
that I did it. In the 3rd statement after they gave
me a few details, I said I shot her, to get them
off my back. I went thru more quiestions than I
thought I would. After I went back to my cell
after I gave the second statement I was so tired I
just gave in to them.
The officers that were drinking was detective ladd
and detective Williamson. They took me to
galveston and to lamarge, to check out some
robberys that I told them me and lat did. They all
turned out to be lies. I admit that I did rape
that girl in Alvin I told them I did. I told the
Galveston County Sheriff I stole 2 motorcycles and
I did. But I told them I shot the girl in this
case. It’s a lie. I knew I was in lots of trouble
anyway, for all the other things I have done,
that’s why Im in the trouble Im in now.
iv. Additional Pre-trial Investigation
On August 21, 1980, after all of Soffar’s confessions had been
taken and the State had been enjoined from interacting with Soffar
any further, the State submitted Garner to questioning under
hypnosis. Presumably, the hypnotic interview was conducted in an
effort to bolster the strength of the State’s case against Soffar.
However, in the end, Garner’s account of events under hypnosis only
served to confirm the version of events he had described in his
initial interviews with investigators, and that version of events
56
differed dramatically from the version given by Soffar in his
written statements. See Appendix “A”. As a result, Garner’s
testimony at trial, if consistent with the statements made to
investigators on July 17-20, 1980, would have served only to
undermine the State’s case against Soffar.
The State did not call Garner as a witness at Soffar’s trial.
Indeed, at trial, instead of calling Garner, the State called Dr.
Gildonburg, the neurosurgeon who operated on Garner, during its
case-in-chief. Dr. Gildonburg testified that Garner could be
suffering from retrogressed amnesia and that Garner may have
created a false memory of events. Dr. Gildonburg did not express
any medical opinion that Garner was in fact suffering from amnesia.
Additionally, we note that Soffar’s trial counsel was informed by
the State that Garner was a “vegetable” with no memory of the
offense, and incredibly, based upon this assertion and the fact
that Garner was not going to be called by the State as a witness,
Soffar’s trial counsel did not even attempt to interview Garner
themselves. Rather amazingly, defense counsel instead chose to
bolster Dr. Gildonburg’s testimony by asking and receiving an
affirmative response to the question, “would it be a fair statement
. . . that a person that suffered the type of wounds that Greg
Garner suffered, no one, including Greg Garner, himself, would ever
know whether he was giving an accurate account of the events that
57
caused his injury?,” thus implying to the jury that, indeed, Garner
had no useful memory of the offense.44
G. The Trial
Beginning on March 16, 1981, Judge Van Stovall presided over
Soffar’s capital murder trial which, exclusive of nearly four weeks
of voir dire and jury selection, lasted two and a half weeks.
i. Guilt Phase
During the trial, and pursuant to Jackson v. Denno, 84 S. Ct.
1774, 1781 (1964), Judge Stovall conducted a two-day hearing out of
the jury’s presence on the admissibility of Soffar’s first three
written statements. During the Jackson v. Denno hearing, Bruce
Clawson testified that Soffar neither asked for an attorney, nor
had any questions about his rights. See Part I.C.iii. At the
conclusion of the admissibility hearing, Judge Stovall entered an
44
We find counsel’s defense strategy in this regard to be
inexplicable. Given the powerfully exculpatory nature of the
inconsistencies between Garner’s account of events and Soffar’s
confession, which inconsistencies would render Soffar’s confession
implausible, one would have expected defense counsel to do
everything in their power to get the substance of Garner’s police
interviews before the jury either by calling Garner as a witness or
by introducing the transcription of these interviews. Defense
counsel should have at least interviewed Garner to determine if he
could and would testify at Soffar’s trial consistent with his
(Garner’s) prior statements. If Garner was not able or willing to
so testify, defense counsel should have offered the prior
statements, recorded and transcribed by the police, as record
evidence of his testimony. Simply put, we are baffled by defense
counsel’s strategy, or complete lack thereof, regarding Garner’s
statements to the investigators.
58
oral ruling that the three statements were freely and voluntarily
made after appropriate Miranda warnings. A written order to the
same effect was entered on May 22, 1981. In his rulings, Judge
Stovall held that each of Soffar’s first three written statements
was signed after Soffar “knowingly, intelligently and voluntarily
waived the Statutory and Constitutional rights.”
Clawson and the other witnesses who testified at the Jackson
v. Denno hearing, also repeated the essence of their testimony
before the jury. The State offered the testimony of Lawrence
“Pops” Bryant and his girlfriend, Mabel Cass to corroborate
Soffar’s confession. Bryant ultimately testified that several
weeks after the bowling alley robbery-murders, Soffar asked him if
he had heard about the bowling alley murders and then stated to him
“if I told you who did it you wouldn’t believe me.” During this
conversation, Soffar told Bryant that three people got shot. And
Bryant testified that Soffar indicated to him that he and Latt were
involved in the bowling alley deal. Mabel Cass did not participate
in, but witnessed the conversation between Bryant and Soffar, and
confirmed in substance that Soffar talked to Bryant about the
bowling alley robbery-murders.
Defense counsel presented its case based on an alibi theory.
Soffar’s mother, Zelda Soffar and other witnesses confirmed that
Soffar spent the entire weekend of July 12-13, 1980 helping a
family member move. Martin and Donna Naylor testified that they
59
dropped Soffar off at his mother’s house in Friendswood sometime
after 7:00 p.m. on the evening of July 13, 1980. According to the
Naylor’s, all of the men who were moving the family belongings were
exhausted from working all day, for two days straight in the summer
heat. Mrs. Soffar testified that Max was exhausted when he was
dropped off and that he watched a little bit of television and then
went straight to bed. She testified that he was in the house when
she awoke the next morning, July 14, 1980.45
On March 31, 1981, the jury returned a verdict of “guilty of
the offense of capital murder.”
ii. Penalty Phase
Beginning on April 1, 1981, Judge Stovall presided over the
penalty phase of Soffar’s trial, which itself lasted three days.
During the penalty phase, and again pursuant to Jackson v. Denno,
84 S. Ct. 1774 (1966), the trial court conducted a hearing out of
the jury’s presence on the admissibility of Soffar’s fourth written
statement, that is, his confession to the rape of Caroline Knight.
At the conclusion of the hearing, the trial court ruled that
Soffar’s fourth statement was freely and voluntarily made without
45
Mrs. Soffar, who had a substantial hearing problem also
testified that, though she did not hear Max or anyone else come or
go that evening, and though the family dog never barked as it
normally did when people came to the house, Max’s bedroom door had
its own exterior door. Prosecutor Tobias suggested during her
cross-examination that it was possible that Soffar left, committed
the bowling alley robbery-murders, and then returned before she
awoke.
60
compulsion or persuasion and that the requisite Miranda warnings
had been given.
The State called numerous witnesses to attest to Soffar’s
criminal history and reputation for having a violent temper. The
State also called Caroline Knight, the rape victim, to identify
Soffar as her assailant and to relate to the jury that Soffar had
told her during the rape that he had killed three other women and
that she was going to be the fourth. Defense counsel did not
interview Ms. Knight prior to trial and cross-examined her only
with respect to her prior inability to identify Soffar in either a
photo spread or line-up. Soffar’s defense counsel presented no
testimony or evidence of any kind whatsoever during the penalty
phase.
The jury was instructed as it began deliberations in the
penalty phase that it could “consider the evidence of the
extraneous sexual assault of Carolyn [sic] Knight for the limited
purpose of aiding the jury in answering any questions that might be
presented in the punishment charge . . . .” The three special
issues submitted to the jury pursuant to the applicable version of
Article 37.071(b) of the Texas Criminal Code were as follows:
A. Do you find from the evidence beyond a reasonable doubt
that the conduct of the Defendant that caused the death
of the deceased was committed deliberately and with the
reasonable expectation that the death of the deceased or
another would result?
B. Do you find from the evidence beyond a reasonable doubt
that there is a probability the Defendant would commit
61
criminal acts of violence that would constitute a
continuing threat to society?
C. Do you find from the evidence beyond a reasonable doubt
whether the conduct of the Defendant in killing the
deceased was unreasonable in response to the provocation,
if any, by the deceased?
On April 3, 1981, the jury returned its verdict answering each
of the three special issues in the affirmative. Thus, the trial
court entered an order sentencing Soffar, in accordance with the
jury’s verdict and pursuant to Texas Code Criminal Procedure
article 37.071(e) (Vernon 1981), to death by lethal injection.
H. Post-Conviction Proceedings
Soffar’s conviction and sentence were automatically appealed
to the Texas Court of Criminal Appeals which, on September 23,
1987, affirmed Soffar’s conviction and sentence in a written
opinion. See Soffar v. State, 742 S.W.2d 371 (Tex. Ct. Crim. App.
1987) (en banc). Soffar’s conviction became “final” for purposes
of this appeal when the United States Supreme Court denied Soffar’s
petition for writ of certiorari on October 10, 1989. See Soffar v.
State, 110 S. Ct. 257 (1989).
On December 14, 1992, Soffar filed a state application for
writ of habeas corpus in the 232nd District Court of Harris County,
Texas, alleging twenty-four grounds for relief. Judge A.D. Azios46
46
Judge Azios was not the same judge who tried the case
originally. Judge Van Stovall, who was a visiting judge, presided
over Soffar’s original trial.
62
conducted a thirteen-day evidentiary hearing during the time period
between August 16, 1994 and September 8, 1994. On November 10,
1995, Judge Azios entered written findings of fact and conclusions
of law recommending denial of Soffar’s application. On April 8,
1996, the Texas Court of Criminal Appeals, in a two-paragraph,
unpublished per curiam opinion, followed Judge Azios’s
recommendation and denied Soffar’s application for habeas corpus
relief.
On April 22, 1996, Soffar filed his first federal petition for
writ of habeas corpus in the United States District Court for the
Southern District of Texas alleging twenty-four claims for relief.
Soffar filed a motion for partial summary judgment in the district
court, and the Director filed a motion for summary judgment on all
of Soffar’s claims. The Director did not contest that Soffar had
sufficiently exhausted his available state remedies, except with
respect to claim 24, as to which the Director waived exhaustion,
and with respect to a portion of Soffar’s Brady47 claims, which were
premised upon the State’s alleged suppression of a ballistics
report and the pretrial statements of Greg Garner. The district
court assumed that Soffar had properly exhausted his state court
remedies with respect to the Brady claims, and denied Soffar’s
Brady claims on the merits. The district court refused to grant
47
Brady v. Maryland, 83 S. Ct. 1194 (1963).
63
Soffar’s motion for discovery and an evidentiary hearing,48 and
entered a written order granting the Director’s motion for summary
judgment on all claims. Soffar timely filed his notice of appeal,
and his motion for issuance of a certificate of probable cause to
appeal was denied by the district court. Soffar has now timely
moved this Court for issuance of such a certificate.
II. DISCUSSION
While in both his state and his federal habeas petitions,
Soffar asserted twenty-four claims for relief, in his pending
motion for issuance of a certificate of probable cause, Soffar
argues only the following five issues:
A. Was the extraneous offense evidence used against
Soffar in the penalty phase (i.e., his fourth
written statement-the rape confession) tainted by
the State’s violation of Soffar’s Sixth Amendment
rights, by its violation of his rights to due
process, by suppression of material exculpatory
evidence, by the ineffective assistance of his
counsel, or by the cumulative effects of the
foregoing violations?
B. Were the three written statements used against
Soffar in the guilt phase obtained by a violation
of Soffar’s right to counsel and right to remain
silent, and were they, under the totality of the
circumstances, not the product of a voluntary
waiver of Fifth Amendment rights?
C. Should the guilty verdict be set aside because,
contrary to the requirements of due process, the
State presented false and misleading evidence at
48
The district court specifically found “that the Record was
sufficient for determination of the pending motions,” and denied
Soffar’s motions to augment the record.
64
trial and withheld material exculpatory evidence
from Soffar?
D. Should the guilty verdict and death sentence be set
aside because Soffar’s defense counsel provided
ineffective assistance of counsel during both the
guilt and penalty phases?
E. Would the execution of a death sentence, after the
lengthy period of delay incurred, constitute cruel
and unusual punishment, contrary to the Eighth and
Fourteenth Amendments?
For the reasons set forth below, we construe Soffar’s motion
for a certificate of probable cause to be a motion for certificate
of appealability and grant the same for limited portions of the
first, second, and fourth issues identified above.
A. Guiding Standards of Review
We begin our discussion of the law in this very troublesome
case with a clear statement of certain landmarks which must guide
our review and analysis of the record and our decision as to relief
in this case. Initially, we note that this is Soffar’s first
federal habeas corpus petition.49 As such, Soffar is entitled to
a careful and thorough review of all of his claims without concern
or limitation that there is any abuse of the writ of habeas corpus
under prior law or any concerns as to successive writs under
current statutes.
49
We note also that there is nothing in the record before us to
indicate that, in the eleven years since Soffar’s conviction became
final, an execution date has ever been set for Soffar.
65
i. Applicability of AEDPA
We also note that this, Soffar’s first federal habeas corpus
petition, was filed pursuant to 28 U.S.C. § 2254 on April 22, 1996,
two days prior to the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110
Stat. 1269 (1996). AEDPA made significant substantive and
procedural changes in the federal statutory framework for
evaluating the habeas corpus claims of state prisoners. Given that
Soffar’s petition was filed before AEDPA’s effective date, we are
bound by the Supreme Court’s decision in Lindh v. Murphy, 117 S.
Ct. 2059 (1997) to apply the substantive provisions of § 2254 as
they existed prior to the changes made by AEDPA.
Additionally, as Soffar’s state capital murder conviction
became final in October 1989, when the United States Supreme Court
denied his petition for writ of certiorari on direct appeal, see
Soffar v. State, 110 S. Ct. 257 (1989), we will survey and take a
snapshot of the landscape of federal constitutional law as it
existed in October 1989 to determine which of those constitutional
rights claimed by Soffar were available at that time and may be
considered in this appeal.
ii. Certificate of Appealability
Soffar filed his notice of appeal from the decision of the
district court in this case on April 24, 1998, and he filed his
motion requesting issuance of a certificate of probable cause to
66
appeal with this Court on September 3, 1998. Unlike the initial
filing of his § 2254 habeas petition, both of these events occurred
after the effective date of AEDPA, April 24, 1996.
During the pendency of this appeal, the United States Supreme
Court entered its decision in Slack v. McDaniel, 120 S. Ct. 1595
(2000), which held that the amended procedural provisions of AEDPA
dealing with appeals from the federal district court to the federal
circuit courts, by individuals in custody pursuant to a state
conviction, are applicable to all such appeals which were filed
after the effective date of AEDPA. At the time the final judgment
in this case was entered by the federal district court, the parties
assumed that the appellate procedural provisions of the pre-AEDPA
version of 28 U.S.C. § 2253 were applicable to the present appeal,
and accordingly, Soffar moved the district court for issuance of a
certificate of probable cause to appeal, which was denied by the
district court. Soffar then petitioned this Court for issuance of
such a certificate.
In order to avoid unnecessary remand of this case to the
district court on this procedural issue, we construe Soffar’s
motion for issuance of a certificate of probable cause (“CPC”)
pursuant to the pre-AEDPA version of § 2253, as a motion for
issuance of a certificate of appealability (“COA”) pursuant to the
new statutory provisions of § 2253, and we treat the district
court’s denial of a CPC as a denial of any COA. We note that we
67
have repeatedly held that the same substantive standard which
governed issuance of a CPC, apply to the issuance of a COA. See,
e.g., Lucas v. Johnson, 132 F.3d 1069, 1072 (5th Cir.), cert.
dismissed, 119 S. Ct. 4 (1998).
iii. Soffar’s Entitlement to a COA
Under the provisions of AEDPA, before an appeal from the
dismissal or denial of a § 2254 habeas petition can proceed, the
petitioner must first obtain a COA, which will issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). We have held that
a petitioner makes a “substantial showing” if he can demonstrate
that “‘reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to
deserve encouragement to proceed further.'" Barrientes v. Johnson,
221 F.3d 741, 772 (5th Cir. 2000) (quoting Slack v. McDaniel, 120
S. Ct. at 1603-04). As the Supreme Court recently noted, when the
district court has rejected the petitioner’s constitutional claims
on the merits, the showing required for the issuance of a COA under
§ 2253(c) is “straightforward: The petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack, 120 S. Ct.
at 1604.
68
We are mindful that our determination of whether a COA should
issue must not ignore the deferential scheme set forth in
§ 2254(d). See Barrientes, 221 F.3d at 772 (citing Hill v.
Johnson, 210 F.3d 481, 484-85 (5th Cir. 2000)). Under the pre-AEDPA
provisions of § 2254(d), which govern our substantive review of the
merits of Soffar’s petition, when considering a petition for writ
of habeas corpus, we presume the factual determinations of the
state court made after a hearing to be correct unless one or more
of the following exceptions to such a presumption of correctness
applies:
(1) that the merits of the factual dispute were
not resolved in the State court hearing;
(2) that the fact finding procedure employed by
the State court was not adequate to afford a full
and fair hearing;
(3) that the material facts were not adequately
developed at the State court hearing;
(4) that the State court lacked jurisdiction of
the subject matter or over the person of the
applicant in the State court proceeding;
(5) that the applicant was an indigent and the
State court, in deprivation his constitutional
right, failed to appoint counsel to represent him
in the State court proceeding;
(6) that the applicant did not receive a full,
fair, and adequate hearing in the State court
proceeding;
(7) that the applicant was otherwise denied due
process of law in the State court proceeding;
(8) or unless that part of the record of the State
court proceeding in which the determination of such
69
factual issue was made, pertinent to a
determination of the sufficiency of the evidence to
support such a factual determination, is produced
as provided for hereinafter, and the Federal court
on consideration of such part of the record as a
whole concludes that such factual determination is
not fairly supported by the record[.]
28 U.S.C. § 2254(d) (1948).
Notwithstanding this deferential scheme for state court
factual determinations, we review the federal district court’s
factual findings for clear error, and we review issues of law de
novo. See Crane v. Johnson, 178 F.3d 309, 312 (5th Cir.), cert.
denied, 120 S. Ct. 369 (1999). With the foregoing principles in
mind, our first task is to determine whether Soffar has made a
substantial showing of the denial of a constitutional right with
respect to any of his numerous issues.
a. Fifth Amendment Challenge
Soffar’s most compelling issue in this appeal is his second.
Soffar claims that the State violated his Fifth Amendment privilege
against compelled self-incrimination by interrogating him after he
had invoked his right to counsel, and further, that the State
obtained an invalid waiver of his rights by virtue of Detective
Clawson’s untrue and deceptive responses to Soffar’s questions
about obtaining counsel, which rendered his subsequent custodial
statements involuntary.
While the factual findings in both the state and federal
district courts are entitled to a presumption of correctness, we
70
note that the state habeas court purported to make a factual
“finding” that “Soffar did not, prior to or contemporaneous with
the giving of his statements, invoke his right to counsel.” The
determination of whether a suspect’s statements or questions
constitute an “invocation of the right to counsel” is a legal
conclusion, see United States v. Cruz, 22 F.3d 96, 98 n.6 (5th Cir.
1994) (citing Smith v. Illinois, 105 S. Ct. 490, 492 (1984)). As
such, it is not entitled to the presumption of correctness afforded
factual findings under § 2254(d).
The federal district court also noted the state habeas court’s
factual determination that “Bruce Clawson did not consider the
applicant’s questions regarding an attorney [to be] an invocation
of the applicant’s rights.” The district court then stated that,
based upon the presumption of correctness to which the state
court’s factual finding was entitled, “Soffar’s contention must be
rejected as a factual matter.” Yet, the district court’s
conclusion in this regard overlooks the fact that Clawson’s
testimony as to a legal conclusion (i.e, that Soffar did not
“invoke his rights”) is merely a factual matter, and the
determination of whether Soffar actually did invoke his right to
counsel was a legal determination, not a factual one. Thus, the
State habeas court’s factual determination of what Clawson thought
Soffar’s questions meant cannot be dispositive of the legal issue
71
of whether Soffar, as a matter of law, invoked his right to
counsel.
The only factual finding challenged by Soffar is the state
court’s failure to reference Clawson’s “obvious answer” remark in
which Clawson acknowledged that, with respect to Soffar’s questions
about getting an attorney, “the obvious answer was that he wanted
an attorney.” The district court acknowledged this statement in
its order, but concluded that Clawson’s testimony as a whole
supported the state habeas court’s finding that Bruce Clawson did
not consider Soffar’s question to be an invocation of his right to
counsel. We find that jurists of reason could most certainly
debate over the legal issue of whether or not, in light of
Clawson’s “obvious answer” remark, Soffar had made a sufficiently
clear invocation of his right to counsel under Edwards v. Arizona,
101 S. Ct. 1880 (1981), such that interrogation was required to
cease, irrespective of what Clawson “thought.” Furthermore, the
district court’s conclusion that Clawson’s misleading and deceptive
responses to Soffar’s inquiries about an attorney did not
invalidate all of Soffar’s subsequent waivers of his right to
counsel, is likewise debatable.
Without further elaboration, our review of the entire record
in this appeal, taken with due consideration of the deferential
scheme set forth in the pre-AEDPA version of § 2254(d), persuades
us that Soffar has “made a substantial showing of the denial of a
72
constitutional right” as to his second issue, the Fifth Amendment
challenge, and we grant him a COA on that issue, as stated above.
b. Remaining Issues
Because, as is discussed infra, we determine that Soffar is
also entitled to full relief from his conviction and sentence based
on his Fifth Amendment challenge, and because Soffar’s remaining
issues do not seek relief beyond that which will be granted on
Fifth Amendment grounds, we need not address Soffar’s entitlement
to a COA on any other issue. However, for the purpose of record
preservation, we also find that Soffar has made a substantial
showing of the denial of a constitutional right with respect to,
and we grant a COA on the following additional issues:
(1) Was the extraneous offense evidence used
against Soffar in the penalty phase, that is,
Soffar’s August 19, 1980 written statement as to
the rape of Caroline Knight, tainted by a violation
of Soffar’s Sixth Amendment rights because the
State interrogated Soffar after he had requested
and been appointed counsel?
(2) Was Soffar denied the effective assistance of
counsel by virtue of his trial counsel’s failure to
investigate, develop, and present available
evidence during the guilt phase of Soffar’s trial;
specifically, the failure to retain a ballistics
expert or develop ballistics evidence, and the
failure to investigate, develop, or present
evidence with respect to the surviving witness,
Greg Garner’s, statements to police?
By virtue of the fact that our grant of relief with respect to
Soffar’s Fifth Amendment challenge would render discussion of the
merits of these additional issues unnecessary, we likewise need not
73
belabor the justifications for granting a COA on those issues.
Suffice it to say, our review of the record of this case, and most
particularly the undisputed and peculiar facts of this case set
forth above, accompanied by our attendant concerns with this most
troublesome case, convince us that Soffar has made a substantial
showing of the denial of constitutional right for each of these
additional issues. These issues could undoubtedly be resolved
differently by, and would be debatable among jurists of reason.
Furthermore, each deserves encouragement to proceed further. Thus,
a COA for each of these two issues is granted. Soffar’s request
for issuance of a COA with respect to all of his remaining claims
is denied.
B. Fifth Amendment Violation
Soffar’s Fifth Amendment challenge was originally briefed in
both the state and federal habeas petitions as an ineffective
assistance of counsel claim based on trial counsel’s alleged
failure to investigate, develop, and present the facts requiring
suppression of Soffar’s statements to the police on August 5-7,
1980. In this appeal, Soffar asserts a substantive Fifth Amendment
challenge based upon the State’s violation of the privilege against
self-incrimination, which is in turn based on the State’s violation
of the right to counsel. We need not address whether, by virtue of
failing to present this Fifth Amendment challenge as a stand alone
74
claim, Soffar has failed to exhaust his state remedies and is thus
procedurally barred from presently pursuing this claim, as the
State has not seen fit to raise the issue of procedural bar and has
in fact, waived any such argument by conceding that Soffar has
fully exhausted his available state court remedies.50 See Goodwin
v. Johnson, 132 F.3d 162, 177 (5th Cir. 1997) (“[g]iven that the
state has not seen fit to argue in this court, the district court,
or even its own courts that [the petitioner’s] Fifth Amendment
claim is procedurally defaulted, we would advance no interest in
federalism or comity by raising the issue ourselves.”).
Additionally, though presented as an ineffective assistance claim
in the habeas petitions, and not as a stand alone Fifth Amendment
challenge, Soffar’s Fifth Amendment challenge was fully presented
and addressed on the merits by the parties and by both the state
and federal habeas courts, and is thus, properly before us. See
Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (“a habeas
petitioner must have fairly presented the substance of his claim to
the state courts” in order to have exhausted state remedies).
i. Fifth Amendment Rights Defined
The Fifth Amendment to the Constitution guarantees that no
person “shall be compelled in any criminal case to be a witness
50
In its briefing to this Court, the State does not contest
that Soffar has sufficiently exhausted his available state remedies
except with respect to claim 24, for which the Respondent waived
exhaustion, and with respect to a portion of Soffar’s Brady claims.
75
against himself.” U.S. CONST. amend. V. This guarantee is generally
known as the Fifth Amendment privilege against compelled self-
incrimination. This privilege is protected against abrogation by
the States through the Fourteenth Amendment. See Goodwin, 132 F.3d
at 178 (citing Malloy v. Hogan, 84 S. Ct. 1489, 1492 (1964)).
As a necessary and integral component of the privilege against
self-incrimination, the Supreme Court recognized in Miranda v.
Arizona, 86 S. Ct. 1602 (1966), that during custodial
interrogation, “the right to have counsel present . . . is
indispensable to the protection of the Fifth Amendment privilege.”
Id. at 1625.51 Thus, the Court announced that when a suspect
declares that he wants an attorney, “the interrogation must cease
until an attorney is present.” Id. at 1628; see also Edwards v.
Arizona, 101 S. Ct. 1880, 1884-85 (1981) (once the accused
“expresse[s] his desire to deal with police only through counsel,
[he] is not subject to further interrogation by the authorities
until counsel has been made available”). In this appeal, Soffar
contends that he invoked his right to counsel when he asked Bruce
51
We note the recent decision of the United States Supreme Court
in Dickerson v. United States, 120 S. Ct. 2326 (2000), which
clearly reaffirms the constitutional basis underlying the Miranda
decision.
76
Clawson about getting a lawyer, and that once he invoked his right
to counsel,52 the police were required to cease interrogating him
until counsel was present.
A suspect may, of course, waive his right to have counsel
present during custodial interrogation, and once a valid waiver of
that right is given, the police are free to interrogate the suspect
until such time as he may subsequently assert his right to counsel.
See Edwards, 101 S. Ct. at 1884 (citing North Carolina v. Butler,
99 S. Ct. 1755, 1757-59 (1979)). With respect to a waiver of the
right to have counsel present, the Supreme Court in Miranda made it
clear that any such waiver must be made knowingly and voluntarily,
i.e., after a suspect is given proper notification of the specific
rights enumerated in Miranda and the suspect acknowledges
understanding such rights. To the end of ensuring that waivers are
fully voluntary and not compelled by the exertion of force,
pressure, or intimidation by custodial authorities, the Court
stated, “any evidence that the accused was threatened, tricked, or
cajoled into a waiver will, of course, show that the defendant did
52
The right to counsel is often referred to as the Fifth
Amendment right to counsel, though technically, such reference is
a misnomer by virtue of the fact that the right to counsel is
simply a judicially created rule established to safeguard the Fifth
Amendment privilege against compelled self incrimination. See
Goodwin, 132 F.3d at 178 n.12. For purposes of our discussion, we
will refer to Soffar’s challenge to the State’s alleged violation
of his right to counsel, i.e., the judicially created rules which
safeguard his Fifth Amendment right against self-incrimination, as
simply his Fifth Amendment challenge.
77
not voluntarily waive his privilege [against self-incrimination].”
Miranda, 86 S. Ct. at 1629. Soffar contends that any waiver which
he may have given to Clawson by agreeing to speak with detectives
after Clawson gave misleading and deceptive responses to Soffar’s
inquires about a lawyer, was invalidated under Miranda because such
waiver was obtained by trickery, and thus, all subsequent waivers
which he gave based on the erroneous information regarding his
rights, were also invalid.
Notwithstanding the foregoing waiver principles, once a
suspect does invoke his right to counsel, and the police do
initiate further custodial interrogation without counsel present,
the suspect’s subsequent statements, “made without having had
access to counsel, [do] not amount to a valid waiver and hence
[are] inadmissible.” Edwards, 101 S. Ct. at 1886. The Edwards
Court concluded that a valid waiver of the right to have counsel
present is not established simply by showing that the suspect
responded to further custodial interrogation, even if he had been
advised of his rights in so doing. See Edwards, 101 S. Ct. at
1884-85; see also McNeil v. Wisconsin, 111 S. Ct. 2204, 2208 (1991)
(“the suspect’s [post-invocation] statements are presumed
involuntary and therefore inadmissible as substantive evidence at
trial, even where the suspect executes [or gives] a waiver and his
statements would be considered voluntary under traditional
standards.”). Thus, irrespective of whether a subsequent waiver is
78
knowing and voluntary, once a suspect invokes his right to have
counsel present, no valid waiver of that right can be obtained
until such time as counsel is present. This principle extends for
as long as the suspect remains in custody without receiving counsel
and irrespective of whether the interrogating officer was aware of
the initial invocation of the right to counsel or whether the
subject of subsequent interrogation pertains to a different offense
than that for which the suspect was originally questioned. See
Arizona v. Roberson, 108 S. Ct. 2093, 2098-2100 (1988) (once the
right to counsel is invoked, police officers may not reapproach him
regarding any offense unless counsel is present-“we attach no
significance to the fact that the officer who conducted the second
interrogation did not know that the [suspect] had made a request
for counsel.” Id. at 2101.).53
Soffar also contends that once Clawson violated his right to
have counsel present, his subsequent custodial interrogation by
police could not constitute a valid waiver of his right to counsel.
Thus, Soffar contends that his three written statements of August
5-7 1980, must be “presumed involuntary” and as such, they were
53
We note that Roberson announced a new rule of constitutional
law when it was decided. Under Teague v. Lane, 109 S. Ct. 1061
(1989), the new rule announced in Roberson cannot be asserted by a
habeas petitioner whose conviction became final before 1988. See
Goodwin, 132 F.3d at 179 n.13. As Soffar’s conviction became final
in October 1989, when the Supreme Court denied certiorari from the
Texas Court of Criminal Appeals’ affirmance of his conviction and
sentence on direct appeal, see Casapri v. Bohlen 114 S. Ct. 948,
953 (1994), Roberson is applicable to Soffar’s habeas claims.
79
inadmissible as substantive evidence at his trial.
ii. Disposition Below
As a necessary component of the ineffective assistance of
counsel claim asserted by Soffar for his trial counsel’s alleged
failure to investigate, develop, and present the facts which would
have resulted in suppression of Soffar’s August 5-7 written
statements, the district court considered and decided whether
Soffar had invoked his right to counsel and whether Soffar
effectively waived his Miranda rights.
The district court acknowledged and relied upon the state
habeas court’s unchallenged factual findings regarding Bruce
Clawson’s affidavit and evidentiary hearing testimony.
Specifically, the district court recounted Bruce Clawson’s
affidavit testimony, extracted supra, regarding Soffar’s first
mention of the need for an attorney. The district court also
considered as fact, though the state habeas court made no reference
to it, Clawson’s state habeas evidentiary hearing testimony that,
with respect to Soffar’s various questions about a lawyer, Clawson
acknowledged that “the obvious answer” was that Soffar “wanted an
attorney.”
After reciting the general principles of the right to counsel,
the district court concluded that, irrespective of the foregoing
testimony from Clawson, in his prior habeas testimony, Clawson had
testified that he did not himself consider Soffar’s questions to be
80
an invocation of his right to counsel. The district court avoided
Clawson’s “obvious answer” remark by relying on the fact that in
his state habeas hearing testimony, Clawson ultimately responded
negatively to the question, “[a]t the time he made those questions
or asked you those questions did you consider them an invocation of
rights to an attorney?” The district court concluded that Soffar’s
contention must “be rejected as a factual matter,” based on the
state habeas court’s factual finding that Clawson did not himself
consider Soffar’s questions to be an invocation.54
In making its decision, the district court relied primarily on
the rule announced by the Supreme Court in Davis v. United States,
114 S. Ct. 2350 (1994), that police need not stop custodial
interrogation if a suspect makes an ambiguous request for counsel,
and need do so only when a “clear” request for counsel is received.
Applying Davis, the district court concluded that Soffar had not
sufficiently clearly invoked his right to counsel, and thus, law
enforcement investigators were free to continue interrogation
without counsel present.
54
Both the state and federal habeas courts also relied upon
Clawson’s technical responses to the question did Soffar “ask” for
an attorney, and upon Clawson’s testimony that Soffar did not have
any questions about his rights. The courts did note, but paid
little regard to the fact that Clawson stated that he had a mutual
pre-trial understanding with the prosecutor that, at trial, he
would narrowly interpret the question regarding whether Soffar had
any questions about his rights to be in relation to the time period
immediately following the reading of the Miranda warnings and not
in relation to Soffar’s subsequent questions about getting an
attorney.
81
Finally, the district court concluded that despite Soffar’s
claim that his waiver of rights was invalidated by police
misconduct, i.e., Clawson’s false and misleading responses to his
questions about a lawyer, Soffar’s waiver was knowing and
voluntary. The district court concluded that Clawson “did not
contradict” the Miranda warnings by providing inaccurate
information regarding Soffar’s rights, and that the record did not
support a finding that Soffar did not understand his rights.
iii. Standard of Review
We review the district court’s grant of summary judgment de
novo. See Williams v. Scott, 35 F.3d 159, 161 (5th Cir. 1994).
When reviewing summary judgment on a petition for habeas corpus,
consistent with the provisions of 28 U.S.C. § 2254(d), we “presume
all state court findings of fact to be correct in the absence of
clear and convincing evidence.” Id.
The facts related to Soffar’s Fifth Amendment challenge are
undisputed and the state habeas court’s factual findings are
unchallenged in this appeal. Though Soffar does challenge the
state habeas court’s failure to address Clawson’s “obvious answer”
remark, we note that the district court credited this testimony in
its order, and thus it was properly made part of the factual
findings which govern resolution of this issue. We will accept and
82
apply the undisputed facts of this case as found by the state and
federal habeas courts and as outlined, supra.55
With respect to a suspect’s alleged invocation of
constitutional rights, what the suspect actually said or asked is
a question of fact, to which the § 2254 presumption of correctness
applies. See United States v. De La Jara, 973 F.2d 746, 750 (9th
Cir. 1992). However, the ultimate determination of whether the
suspect’s statements were sufficient to invoke such constitutional
rights is a legal determination, which we review de novo. See id.
Thus, whether Soffar’s questions regarding counsel were sufficient
to invoke his right to counsel, is a legal determination for which
we apply de novo review.
iv. Legal Landscape Governing Review
In considering Soffar’s Fifth Amendment challenge on de novo
review we must first identify the legal principles which govern
disposition of his claims. Soffar’s conviction became final in
October 1989. Under Teague v. Lane, 109 S. Ct. 1060 (1989), we may
not apply new rules of constitutional law relating to the merits of
Soffar’s claims that were announced after October 1989. Thus, we
must survey the legal landscape as it existed in October 1989 to
determine those constitutional rules which govern our disposition.
See Jackson v. Johnson, 217 F.3d 360, 363 (5th Cir. 2000)
55
We note, however, that those “findings” of the state habeas
court which are in truth legal conclusions, will not be afforded
deference under §2254(d).
83
(citations omitted). Our survey of the legal landscape as it
existed in October 1989 reveals the following principles of law
with respect to the Fifth Amendment challenge raised by Soffar.
a. Clear Invocations of the Right to Counsel
At the time Soffar’s conviction became final, it was well
settled in the law that if a suspect makes a clear and unambiguous
statement invoking his right to have counsel present, all police
custodial interrogation must cease until counsel is made available,
and any subsequent statements taken without the benefit of counsel
present are inadmissible. See Miranda, 86 S. Ct. at 1628; see also
Edwards, 101 S. Ct. at 1885; United States v. Cherry, 733 F.2d
1124, 1130 (5th Cir. 1984).
b. Ambiguous Requests for Counsel
Surveying the legal landscape as it existed in October 1989,
we find that the Supreme Court had not spoken as to the
constitutional rule which would be required with respect to
equivocal or ambiguous requests for counsel that a suspect makes
during custodial interrogation. In two cases, Connecticut v.
Barrett, 107 S. Ct. 828 (1987), and Smith v. Illinois, 105 S. Ct.
490 (1984), the Supreme Court recognized that an accused’s asserted
request for counsel may occasionally be ambiguous or equivocal and
noted that the Circuit Courts of Appeal were in conflict about how
to handle such a request, but the Court declined to resolve the
conflict in each of the cases before it. See Smith, 105 S. Ct. at
84
493 n.3; Barrett, 107 S. Ct. 832 n.3. Accordingly, this Circuit’s
decisions in United States v. Cherry, 733 F.2d 1124 (5th Cir.
1984), Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979), and
Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979) (en banc), were
controlling and established the law of this Circuit with respect to
what procedures must be followed if a suspect makes an ambiguous or
equivocal request for counsel. In Nash we held that pursuant to
the principles of Miranda and the Fifth Amendment, the only
permissible questions once an equivocal request for counsel is
asserted, are clarifying questions to determine whether the suspect
is indeed invoking his right to counsel. See Nash, 597 F.2d at
517. In Thompson v. Wainwright, we further affirmed our rule and
summarized the law of this Circuit as follows:
Whenever even an equivocal request for an attorney
is made by a suspect during custodial
interrogation, the scope of that interrogation is
immediately narrowed to one subject and one only.
Further questioning thereafter must be limited to
clarifying that request until it is clarified.
When and if it is clarified as a present desire for
the assistance of legal counsel, all interrogation
must cease until that is provided just as in the
case of the initial unambiguous request for an
attorney. And no statement taken after that
request is made and before it is clarified as an
effective waiver of the present assistance of
counsel can clear the Miranda bar.
Thompson, 601 F.2d at 771-72. Similarly, in the factually similar
case of Cherry, in which we grappled with many of the same concerns
we are faced with in this case, we recognized that Nash and
85
Thompson established the procedure to be followed when a suspect
expresses an equivocal request for counsel, and that our decisions
in Nash and Thompson were not altered in any way by the decision of
the Supreme Court in Edwards because Edwards did not address what
would be required of interrogating officers faced with an
“ambiguous” request for counsel. Thus, under our Circuit’s
precedent as it existed in October 1989, when a suspect uttered an
ambiguous or equivocal request for an attorney, all interrogation
was to be narrowed to the single issue of clarification until the
suspect gave either an unambiguous request for counsel, at which
time all questions must have stopped or until the suspect gave an
unambiguous, knowing, and voluntary waiver of his right to have
counsel present, at which point questioning could resume.
In this appeal, the State contends that Soffar’s questioning
about getting an attorney was an ambiguous and equivocal request,
but under the later decision of the Supreme Court in Davis v.
United States, 114 S. Ct. 2350 (1994), which was relied upon by the
district court, the interrogating officers were not required to
cease questioning. Davis was decided after Soffar’s conviction
became final and by the Supreme Court’s own account it fixed a new
rule when decided.56 We note that there is nothing in the Supreme
56
In Davis, the Supreme Court acknowledged that the rule it was
creating with respect to ambiguous and equivocal requests for
counsel was its first. Specifically, the Court stated:
Although we have twice previously noted the varying
86
Court’s decision in Davis which explicitly indicates that the Court
intended for the new rule stated therein to be made retroactively
applicable to habeas corpus proceedings involving cases in which
the conviction became final prior to the announcement of the rule
in Davis. Yet by implication, the State argues that we are
permitted (and required) to “deny” habeas relief by retroactively
applying a new rule announced by the Supreme Court.
The Third Circuit echoed the State’s position with respect to
the retroactive applicability of Davis in Flamer v. Delaware, 68
F.3d 710, 725 n.14 (3d Cir. 1995), in which the court held that
Davis may be applied retroactively despite Teague because Teague
only applies to new rules favoring petitioners. See id. The Third
Circuit’s decision was based on the reasoning set forth by the
Supreme Court in Lockhart v. Fretwell, 113 S. Ct. 838, 844 (1993),
in which the Supreme Court explained that federal habeas
approaches the lower courts have adopted with respect to
ambiguous or equivocal references to counsel during
custodial interrogation, see Connecticut v. Barrett, 479
U.S. 523, 529-530, n.3, 107 S. Ct. 828, 832, n.3, 93
L. Ed. 2d 920 (1987); Smith v. Illinois, 469 U.S. 91, 96,
n.3, 105 S. Ct. 490, 493, n.3, 83 L. Ed. 2d 488 (1984) (per
curiam ), we have not addressed the issue on the merits.
We granted certiorari, 510 U.S. 942, 114 S. Ct. 379, 126
L. Ed. 2d 329 (1993), to do so.
Davis, 114 S. Ct. at 2354; see also Smith, 105 S. Ct. at 493 n.3
(recognizing Fifth Circuit decision in Thompson v. Wainwright, 601
F.2d 768, 771-772 (5th Cir. 1979) as requiring narrowing of
continued questioning to the sole issue of clarifying whether
suspect is making an invocation of the right to counsel after an
ambiguous or equivocal request for counsel is made).
87
petitioners do not have the “interest in the finality of the state
court judgment under which [they are] incarcerated” which the State
does. Id. The State’s unshared interest justifies the Teague
rule, which was established to avoid penalizing the State for
relying on the constitutional standards which were prevailing when
the original proceedings occurred but which were altered by
subsequent Supreme Court precedent. See id. The Court went on to
note that a petitioner does not ordinarily have any “claim of
reliance on past judicial precedent as a basis for his actions that
corresponds to the State’s interest.” Id. The Court described the
fact that, as a result of this analysis, the State will benefit
from a Teague decision while the petitioner will not, as a
“perfectly logical limitation of Teague to the circumstances which
give rise to it.” Id. Like the Third Circuit, we recognize that
we cannot avoid the Supreme Court precedent dictating that Davis
may be made applicable to Soffar’s conviction, despite the
otherwise prohibitive features of Teague.
The State argues that it is the application of the rule Soffar
seeks regarding ambiguous requests for counsel, i.e., the rule of
Cherry, Thompson, and Nash, which is barred by the non-
retroactivity principles of Teague. We apply Teague in three
steps: first, we determine when the petitioner’s conviction and
sentence became final; second, we then survey the legal landscape
as it then existed to determine whether a state court considering
88
the petitioner’s claim would have felt compelled by existing
precedent to conclude that the rule he seeks was required by the
Constitution; and third, if the rule he seeks is a new one, not
dictated by then-existing precedent, we look to see if either of
the two exceptions to non-retroactive applicability fit the case at
hand. See Jackson v. Johnson, 217 F.3d 360, 363 (5th Cir. 2000).
Here, we know that Soffar’s conviction became final for purposes of
Teague on October 10, 1989, and our survey of the legal landscape
as of that time persuades us that the settled law in this Circuit
was that an ambiguous or equivocal request for counsel during
custodial interrogation required cessation of interrogation until
clarification of that request was achieved and a knowing and
voluntary waiver was given and that interrogating officers could
not use the opportunity to respond to ambiguous or equivocal
requests as a subterfuge for coercion, intimidation, or trickery.
And while we recognize that a Texas state court would not have been
legally bound to apply our Circuit precedent on this constitutional
issue, in the absence of Supreme Court or binding state court
authority to the contrary, and with the Supreme Court’s explicit
recognition of the rule of Thompson in Smith v. Illinois, 105 S.
Ct. 490, 493 n.3 (1984), we conclude that a Texas state court would
have felt compelled to apply the rule identified in Cherry,
Thompson, and Nash with respect to ambiguous requests for counsel.
Consequently, Soffar is not asserting a “new rule” and we need not
89
assess the applicability of the exceptions to Teague in the third
step.
But all of that having been said, while Teague does not bar
the application of the rule announced in Cherry, Thompson, and Nash
to Soffar’s benefit, as noted above, it likewise does not prevent
the applicability, to Soffar’s detriment, of the rule announced in
Davis, which abrogated the portions of Cherry, Thompson, and Nash
explicitly requiring all questioning to be narrowed to the sole
issue of clarification of an ambiguous request, and which
authorized continued questioning without a clarification
requirement. Notwithstanding the applicability of Davis, however,
we note that Davis specifically recognized that, while officers are
not required to ask clarifying questions when they are faced with
an ambiguous request for counsel, “it will often be good police
practice for the interviewing officers to clarify whether or not
[the suspect] actually wants an attorney.” Davis, 114 S. Ct. at
2356. Nothing in Davis altered our holding in Nash that
interrogating officers who do seek clarification of an ambiguous or
equivocal request for counsel are not permitted “to utilize the
guise of clarification as a subterfuge for coercion or
intimidation.” Nash, 597 F.2d at 517. Nor did Davis alter our
holding in Thompson that, when clarifying an ambiguous or equivocal
request for counsel, under no circumstances may an officer “mislead
[a suspect] into abandoning his equivocal request for counsel.”
90
Thompson, 601 F.2d at 772. Indeed, the interpretations of Miranda
and Edwards set forth in our decisions in Cherry, Thompson, and
Nash, insofar as they are consistent with Davis, Dickerson, and
other relevant Supreme Court cases, remain untouched and reaffirmed
as circuit precedents.
Thus, the law applicable to Soffar’s conviction dictates that,
if interrogating officers are confronted with an ambiguous or
equivocal request for counsel, under Davis, they are not required
to cease interrogation. However, if under Davis, the officers
exercise good police practice and seek clarification, under this
Circuit’s holdings in Nash and Thompson, the officers may not use
the clarifying inquiry or their responses to an ambiguous or
equivocal request for counsel to coerce, intimidate, or trick the
suspect into abandoning his ambiguous or equivocal request for
counsel. Such coercion, intimidation, or trickery in order to get
a suspect to abandon an unclear request for counsel is not
permitted under Miranda or Davis, and is explicitly prohibited by
Nash and Thompson.
c. Waivers of Right to Counsel
At the time Soffar’s conviction became final, the law with
respect to waivers of the right to counsel was well settled. As
noted above, once a valid waiver of the right to counsel is given,
the police are free to interrogate the suspect until such time as
91
a suspect may subsequently assert his right to counsel. See
Edwards, 101 S. Ct. at 1884 (citing North Carolina v. Butler, 99
S. Ct. 1755, 1757-59 (1979)). There is a strong presumption
against waiver, and in order to establish that statements taken by
police during uncounseled custodial interrogation are admissible,
the burden rests with the State to establish “that the [suspect]
knowingly and intelligently waived his privileges against self-
incrimination and his right to retained or appointed counsel.”
Miranda, 86 S. Ct. at 1628. Indeed, courts must “‘ indulge every
reasonable presumption against waiver of fundamental constitutional
rights.’” Michigan v. Jackson, 106 S. Ct. 1404, 1409
(1986)(quoting Johnson v. Zerbst, 58 S. Ct. 1019, 1023 (1938)).
As the district court noted, the Supreme Court has explained
the procedure for evaluating the validity of waivers as follows:
The inquiry has two distinct dimensions. First,
the relinquishment of the right must have been
voluntary in the sense that it was the product of a
free and deliberate choice rather than,
intimidation, coercion, or deception. Second, the
waiver must have been made with a full awareness of
both the nature of the right being abandoned and
the consequences of the decision to abandon it.
Only if the “totality of the circumstances
surrounding the interrogation” reveals both an
uncoerced choice and the requisite level of
comprehension may a court properly conclude that
the Miranda rights have been waived.
Moran v. Burbine, 106 S. Ct. 1135, 1141 (1985). As part of this
inquiry, courts must consider the unique facts of a particular
case, “including the background, experience, and conduct of the
92
accused.” Oregon v. Bradshaw, 103 S. Ct. 2830, 2835 (1983)
(internal citations omitted). Furthermore, the Supreme Court has
made it clear that “any evidence that the accused was threatened,
tricked, or cajoled into a waiver will, of course, show that the
defendant did not voluntarily waive his privilege [against self-
incrimination].” Miranda, 86 S. Ct. at 1629. And finally, under
this Circuit’s precedent at the time Soffar's conviction became
final, a statement “taken . . . after [a suspect] was misled into
abandoning his equivocal request for counsel,” is violative of
Miranda. Thompson, 601 F.2d at 772.
To recap, our survey of the legal landscape as it existed in
October 1989 and as applicable to Soffar’s petition reveals the
following basic principles which guide our review of Soffar’s Fifth
Amendment challenge: 1) if Soffar made a sufficiently clear
invocation of his right to counsel through his questions about
getting an attorney, the State’s continued interrogation of him
violated his right to counsel and all statements derived from his
continuous custodial interrogation were inadmissible; 2) if
Soffar’s questions were but an ambiguous request for counsel, then,
while Clawson was not required to narrow the scope of questioning
to the sole issue of clarifying Soffar’s request, if he did, he was
obligated not to use the opportunity to clarify to coerce,
intimidate, or trick Soffar into abandoning his ambiguous request
and if Clawson utilized such deceit and trickery to obtain a waiver
93
of the right to counsel from Soffar and contradicted or undermined
Miranda in doing so, then Soffar’s subsequent waivers of the right
to have counsel present during custodial interrogation were
invalidated by such actions.
v. Fifth Amendment Challenge-the Merits
Guided by the foregoing legal principles, we now turn to our
analysis of the merits of Soffar’s claim that the State violated
his Fifth Amendment rights by continuing to interrogate him in
custody and without counsel present after he invoked his right to
counsel. We consider first whether Soffar’s invocation of his
right to counsel was sufficiently clear under the totality of the
circumstances, and second, whether Clawson’s responses to Soffar’s
inquiries about a lawyer invalidated his subsequent waivers of the
right to have counsel present during his custodial interrogation.
a. Clear Invocation?
The first question we must answer is whether Soffar's
questions to Clawson constituted a clear invocation of his right to
counsel. As the Supreme Court put it in Edwards and later in
Davis, a suspect must “articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in
94
the circumstances would understand the statement to be a request
for an attorney.” Davis, 114 S. Ct. at 2364 (Souter, J.,
concurring). Although, in Davis, the Supreme Court held that
police have no duty to stop an interrogation if the suspect makes
an ambiguous request for counsel, Davis requires the police to stop
an interrogation if a reasonable officer, under the totality of
circumstances, would understand that the suspect desires to confer
with counsel before answering further substantive questions. The
Davis Court supplied the following test for determining whether a
suspect has invoked his right to counsel:
Although a suspect need not ‘speak with the
discrimination of an Oxford don,’ he must
articulate his desire to have counsel present
sufficiently clear that a reasonable officer
in the circumstances would understand the
statement to be a request for an attorney.
Davis, 114 S. Ct. at 2355 (citations omitted, emphasis supplied).
In deciding whether a request for counsel is sufficiently
clear to constitute an invocation of the right to counsel, we must
consider “the totality of the circumstances,” and we must also
remain mindful of the teachings of Michigan v. Jackson, 106 S. Ct.
1404, 1409 (1986), wherein the Supreme Court, cognizant of the
settled principles of indulging every presumption against waiver
and resolving all doubts in favor of protecting constitutional
95
claims, stated that the courts must “give a broad, rather than a
narrow, interpretation to a [suspect’s] request for counsel.”
The district court relied heavily on the state habeas court’s
factual finding that Bruce Clawson did not consider Soffar’s
questions about a lawyer to be an invocation of his right to
counsel, and that based thereupon, Soffar’s claim that he had
sufficiently articulated a request for counsel “must fail as a
factual matter.” This factual finding, however, is not entitled to
the heightened level of deference afforded it by the district
court, and as discussed below, taken in the context of Clawson’s
full testimony, it is most certainly not dispositive of the
ultimate legal issue of whether Soffar’s statements did constitute
an effective invocation, which legal issue is to be decided by the
court and not Clawson. Clawson’s testimony as to his belief that
Soffar’s questions were not an invocation, while probative of
whether a reasonable officer would understand Soffar’s questions to
be a request for an attorney, is simply not dispositive, and the
district court erred in so stating.
As discussed above, our analysis of the entirety of Clawson’s
testimony reveals the following. Soffar asked Clawson first
whether he should talk to a lawyer. Clawson said “if you're guilty
talk to the police, if you're innocent you should talk to a
lawyer.” Based on this, Soffar then asked “how do I get a lawyer?”
Clawson deflected this question by asking, “can you afford” an
attorney, implying that if Soffar couldn't afford a lawyer he
96
wouldn't be able to get one. Undeterred, Soffar thirdly asked
“then how do I get a court-appointed lawyer, and how long will it
take?” Clawson once again deflected this question by giving
knowingly false information, i.e., that it could take up to a month
to get a lawyer. Finally, based on Clawson's misleading responses,
Soffar said “well, then I guess I'm on my own?” We conclude that
either Clawson's failure to respond to that question as he stated
he did in his state habeas affidavit, or his affirmative response
of “yes, you are” as he stated in his state habeas evidentiary
hearing testimony (see supra note 22), together with Clawson’s
follow-up question “now will you talk to the detectives again?,”
constituted an implicit affirmative response to Soffar's last
question which was the equivalent of saying “you can't get a
lawyer, Max, and yes, you're on your own now.” Additionally, we
are persuaded by Clawson’s state habeas evidentiary hearing
testimony, in which Clawson responded to habeas counsel’s question,
“based on everything you heard and observed . . . what did you
conclude [Soffar] wanted?,” by stating, “well, the obvious answer
is he wanted an attorney.”
Clawson also stated in his state habeas testimony that his
“duty” as a police officer that day was to keep Soffar talking.
Under Miranda, Clawson's duty was to respond honestly and
completely to Soffar's questions, and not to mislead him into
believing that he could not get a lawyer if he wanted one. The
97
fact that Soffar asked how he could get a lawyer immediately in
response to Clawson's statement that if he was innocent he should
talk to a lawyer, is particularly evident of an invocation of the
right to counsel. The essence of Soffar’s question was as if
Soffar responded, “well, I'm innocent, so how do I get my lawyer?”
Unfortunately, Clawson's very next statement was a calculated move
to imply that Soffar could only get a lawyer if he could afford one
himself, a condition which Clawson knew did not exist. Indeed, it
was Soffar who had to interject the idea of getting a court-
appointed lawyer. And Clawson's response to that request was
equally deceitful. Clawson admitted to knowing about Houston's 72-
hour rule, and he further testified that Max was incapable of
thinking much farther into the future than the present day, but he
responded to Soffar's inquiry by stating that it could take up to
a month. Also, Clawson's response when Soffar stated “I guess I'm
on my own,” which he testified at one point was silence, but which
he testified at another point was an affirmative “yes, you are,”
coupled with Clawson's next question, “so will you talk the cops?,”
is further evidence that Clawson directly violated the tenets of
Miranda by pressuring Soffar not to invoke his right to counsel.
Clawson admitted as much in his habeas testimony. According
to his testimony, Clawson deliberately “derailed [Soffar’s]
inquiries about the subject of obtaining a lawyer,” because of the
pressure he was under from the Houston detectives not to “derail
98
their investigation” by letting their only lead consult a lawyer.
Clawson knew that Soffar, seeking Clawson’s advice as a friend,
would “follow his lead,” and he purposefully sought to manipulate
Soffar’s trust to ensure that Soffar did not ask for a lawyer then,
or at any time during the later interrogation, by convincing Soffar
that he was going to have to deal with the detectives “on his own.”
In our view, Soffar tried his best to invoke his rights and get
counsel, but Clawson deliberately distorted the reality of Soffar’s
rights, relying upon his personal relationship with Soffar to
convince Soffar that he had none. Our conclusion in this regard is
only further supported by Soffar’s lament, “I guess I’m on my own
then.”
We pause here to note that in Miranda, the Supreme Court
stated that:
[i]n order fully to apprise a person
interrogated of the extent of his rights under
this system then, it is necessary to warn him
not only that he has the right to consult with
an attorney, but also that if he is indigent a
lawyer will be appointed to represent him.
Without this additional warning, the
admonition of the right to consult with
counsel would often be understood as meaning
only that he can consult with a lawyer if he
has one or has the funds to obtain one. The
warning of a right to counsel would be hollow
if not couched in terms that would convey to
the indigent--the person most often subjected
to interrogation--the knowledge that he too
has a right to have counsel present. As with
the warnings of the right to remain silent and
of the general right to counsel, only by
effective and express explanation to the
indigent of this right can there be assurance
99
that he was truly in a position to exercise
it.
Miranda, 86 S. Ct. at 1627. Clawson’s responses when Soffar
broached the subject of legal assistance were not the answers
required by Miranda – that he had the right to have an attorney
present to advise him without regard to his guilt or innocence and
even though he could not afford to pay for one; that the State
would pay for a lawyer to assist him in deciding whether to
continue talking to the police; and that he could demand that the
questioning stop until his attorney was present. Instead,
Clawson’s remarks can only be read to mean that Soffar could not
have an attorney within a reasonable time unless he could pay for
one; that it might take a month for him to obtain the services of
a court-appointed lawyer; and in the meantime, he was on his own in
dealing with the other police interrogators.
In light of the foregoing, we conclude that Clawson’s “belief”
that Soffar’s inquiries were not a request for an attorney, was
simply willful ignorance designed to further his stated goal of
ensuring that Soffar did not ask for an attorney. That Clawson
would not allow himself to perceive Soffar’s inquiries as an
“invocation of the right to counsel” is wholly consistent with
Clawson’s admitted role as the facilitator of uncounseled custodial
interrogation. Based on these conclusions, we cannot rely on
Clawson’s testimony that he did not consider Soffar’s inquiries to
100
be a request for an attorney as dispositive with respect to the
legal issue of whether Soffar invoked his right to counsel.
In our view, and considering the totality of the
circumstances, including Clawson's historical association with and
understanding of Soffar's thinking, we find that a reasonable
officer in Clawson's position, knowing everything about Soffar that
Clawson did, but without the stated mission of preventing Soffar
from invoking his right to counsel, would have viewed Soffar's
series of question to be an invocation of his right to counsel,
especially in light of Soffar's follow-up questions to each of
Clawson's intentionally deflective responses. Indeed, when
referring to the totality of the circumstances surrounding the
Clawson-Soffar colloquy, even Clawson stated that it was “obvious”
that Soffar “wanted an attorney.” Not that he “might” want or
“possibly” wanted an attorney, or that he was considering asking
for an attorney, but that he indeed “did” want an attorney. In
such circumstances as these, where the interrogating officer had
personal knowledge of Soffar’s background (his inability to afford
private counsel) and his distinguishing, relevant character traits
(his trust in the officer resulting from a relationship built over
time; his modes of communication, including his argot mannerisms,
and gestures; and his incapacity to “think much farther into the
future than the present day”), a reasonable officer would have
understood Soffar’s questions and responses to express a clear
“desire to have counsel,” as in fact Clawson ultimately testified
101
he did understand.
As a result, we conclude that under the totality of the
circumstances, Soffar’s collective inquiries about getting a lawyer
constituted a sufficiently clear invocation, under both Davis and
Edwards, of his right to counsel -- an invocation which Clawson
fully appreciated but intentionally ignored. Thus, irrespective of
the fact that Soffar gave subsequent, otherwise valid waivers of
his rights, all subsequent custodial interrogation was taken in
violation of Soffar’s Fifth Amendment rights, and the written
statements derived from such interrogations were inadmissible in
his trial.
b. Validity of Waiver
Even if we assume arguendo that Soffar’s request for counsel
was merely “ambiguous,” our precedent applicable at the time
Soffar’s conviction became final, including Cherry, Thompson, and
Nash, though altered by Davis to the extent that questioning is not
required to be stopped upon the making of such an ambiguous
request, prohibits officers engaged in allegedly clarifying
responses to such a request to use the opportunity to respond in
order to coerce, intimidate, or trick the suspect into abandoning
the equivocal assertion of the right to have counsel present and
waiving such right. We note that Davis permits, and in fact
encourages, officers to seek clarification of the request before
any continued substantive questioning. But, more importantly, if
102
an officer like Clawson does undertake to clarify the suspect’s
request, he may not “utilize the guise of clarification as a
subterfuge for coercion or intimidation.” Nash, 597 F.2d at 517.
Clawson was therefore not at liberty to “mislead [Soffar] into
abandoning his equivocal request for counsel,” and any
incriminating statement taken under such circumstances must be
deemed to have been obtained “in violation of Miranda.” Thompson,
601 F.2d at 772. The purpose of the clarification inquiry is “not
to persuade but to discern,” see id., and in this case, Clawson
undisputedly asked his deflective questions, not to discern
Soffar’s true intent, but to persuade him not to invoke his right
to counsel and indirectly, to have Soffar re-waive his right to
have counsel present. The undisputed facts establish that Clawson
deliberately set about to avoid and deflect Soffar’s attempts to
invoke his right to counsel, to confuse the issue, and to muddy
Soffar’s perception of the availability of his rights.
Thus, irrespective of Davis, Clawson’s use of clarifying
questions as a “subterfuge for coercion and intimidation” designed
specifically to mislead Soffar into abandoning his ambiguous
request for counsel and essentially re-waiving his right to
counsel, rendered his written statements, taken during subsequent,
103
uncounseled interrogation, violative of Miranda.
Additionally, Soffar contends that, in violation of Miranda
itself, Clawson’s misleading responses to his questions directly
invalidated his waivers of the right to counsel. As noted above,
courts must “``indulge every reasonable presumption against waiver
of fundamental constitutional rights.’” Michigan v. Jackson, 106
S. Ct. 1404, 1409 (1986) (quoting Johnson v. Zerbst, 58 S. Ct.
1019, 1023 (1938)). The burden of establishing waiver rests with
the State, and in order to satisfy its burden, the State must
establish that the suspect’s waiver was voluntary in the sense that
it was not the product of “intimidation, coercion, or deception,”
and that the suspect understood both the right being waived and the
consequences of waiver. See Moran v. Burbine, 106 S. Ct. 1135,
1141 (1986). The “totality of the circumstances,” including the
background and experience of the suspect, must reveal an uncoerced
choice and full comprehension, i.e, that the waiver was voluntarily
and knowingly made, before we may conclude that a valid waiver
occurred. See id. No finding of voluntariness may be made if the
evidence establishes that the suspect was “threatened, tricked, or
cajoled into a waiver.” Miranda, 86. S. Ct. at 1629 (emphasis
supplied).
104
The district court held that notwithstanding the undisputed
fact that Clawson gave Soffar misleading information in response to
his questions about a lawyer, Clawson did not “contradict” the
Miranda warnings. The district court also concluded that the
record of this case did not support Soffar’s contention that when
Soffar agreed, after asking Clawson about getting an attorney, to
speak with Detective Schultz again, that he “was suddenly not aware
of, or understanding of, [the] rights or consequences of waiver.”
We cannot agree with the district court on either of these points.
With respect to whether Clawson contradicted the Miranda
warnings, Clawson's duty under Miranda was to respond honestly and
completely to Soffar's questions regarding his rights, and not to
undermine Miranda by misleading him into believing that he could
not get a lawyer if he wanted one. When Soffar asked “how could
[I] get a lawyer?,” Clawson's response, “can you afford to buy an
attorney, Max?,” was a calculated move to imply that Soffar could
only get a lawyer if he could afford one himself, a possibility
which Clawson knew did not exist. Indeed, instead of Clawson
complying with the spirit of Miranda by responding that he could
get a court-appointed attorney if he could not afford one, it was
Soffar who had to interject the idea of getting court-appointed
counsel. Clawson's response to Soffar’s suggestion was equally
mendacious. Clawson admitted to knowing about Houston's 72-hour
rule, pursuant to which a suspect had to be either charged or
105
released within 72 hours of arrest, and he admitted to knowing from
his personal experience and Soffar’s background that Soffar was
incapable of thinking much farther into the future than the present
day, but he responded to Soffar's inquiry by stating that it could
take up to a month to get appointed counsel. Clawson also
testified that he intentionally sped things up so that Soffar, with
his limited intelligence, would not have time to clearly understand
his rights or object to continued interrogation without counsel.
Again, we pause to note Clawson’s testimony that he was fully aware
that during this encounter, Soffar would “follow my lead.” Also,
either Clawson's affirmative response or his implicit concurrence
through silence when Soffar stated, “I guess I'm on my own,”
coupled with Clawson's next question, “so will you talk to the
cops?,” is further evidence that Clawson directly violated the
tenets of Miranda by interfering with Soffar's ability to
understand and invoke his right to counsel.
Based upon our independent review of the undisputed and
uncontradicted evidence in this record, as found by the State
habeas court and the federal district court, we conclude that on
August 5, 1980, Detective Bruce Clawson employed deception and
trickery, and he exploited his personal influence over Soffar, to
convince Soffar that the right to counsel which is guaranteed all
suspects undergoing custodial interrogation by Miranda did not
apply to him and that Soffar was tricked and misled into a
106
misunderstanding of his previously waived rights. We hold that in
all essential respects, Clawson’s conduct contradicted and violated
the substance and spirit of Miranda. Based upon the totality of
the circumstances, we also hold that, contrary to the requirements
set forth in Moran, Soffar’s waiver of the right to counsel was
neither knowing, by virtue of Clawson’s misleading Soffar as to the
nature, extent, and applicability of his Miranda rights, nor
voluntary, by virtue of the fact that Soffar’s waiver was obtained
by trickery and deceit. Accordingly, the waiver given by Soffar
when he agreed to continue speaking with Detective Schultz on
August 5, 1980, and every subsequent waiver of his Miranda rights
given between August 5-7, each of which was based on his
misperception that he was “on his own” and could not avail himself
of the constitutional guarantees established in Miranda, was
invalid. Therefore, we hold that each of the written statements
given by Soffar on August 5-7, were inadmissible.
d. Harmless Error Analysis
The harmless error rule applies to alleged Miranda violations.
See United States v. Paul, 142 F.3d 836, 843 (5th Cir.) (citing
United States v. Baldwin, 691 F.2d 718, 723 (5th Cir. 1982)), cert.
denied, 119 S. Ct. 271 (1998). The harmless error standard as
applied in the context of habeas reviews requires that we grant
relief on the basis of a constitutional error in the trial court
“only if the error had a substantial and injurious effect or
107
influence in determining the jury’s verdict.” Goodwin, 132 F.3d
162 (citing Brecht v. Abrahamson, 113 S. Ct. 1710, 1712 (1993))
(internal quotation marks omitted).
In O’Neal v. McAninch, 115 S. Ct. 992 (1995), the Supreme
Court rejected the notion that under Brecht, the habeas petitioner
must bear the burden of establishing whether the error was
prejudicial, and held that “[w]hen a federal judge in a habeas
proceeding is in grave doubt about whether a trial error of federal
law had ‘substantial and injurious effect or influence in
determining the jury’s verdict,’ that error is not harmless. And,
the petitioner must win.” Id. at 994. In other words, as Justice
Thomas observed in his dissenting opinion, “[u]nder the majority’s
rationale, however, the habeas petitioner need not prove causation
at all; once a prisoner establishes error, the government must
affirmatively persuade the court of the harmlessness of that error
. . . . [T]he court thus treats the question of causation as an
affirmative defense.” Id. at 999 (Thomas, J., dissenting).
Consequently, in the present case, the government must
affirmatively persuade us of the harmlessness of the errors; and if
we are left by the record of the trial with grave doubt about the
effect of the errors, those errors are not harmless according to
the rationale of O’Neal.
We have repeatedly acknowledged that confessions are like no
other type of evidence, and they are likely “``the most probative
108
and damaging evidence that can be admitted against [a criminal
defendant].’” Goodwin, 132 F.3d at 182 (quoting Bruton v. United
States, 88 S. Ct. 1620, 1629 (1968) (White, J. dissenting)). And
as confessions go, a full confession, unlike statements concerning
only isolated aspects of a crime, “``may tempt the jury to rely upon
that evidence alone in reaching its decision.’” Id. (quoting
Arizona v. Fulminante, 111 S. Ct. 1246, 1257 (1991)).
In this case, our harmless error analysis is uncomplicated.
Soffar was convicted almost exclusively on the basis of his written
confessions and the State introduced absolutely no direct or
physical evidence connecting Soffar to the bowling alley robbery-
murders. No fingerprints of Soffar were found at the murder scene.
No eyewitness identified Soffar as being at the murder scene. No
gun was recovered from Soffar by the police and no gun was
identified as the murder weapon. No items of personal property
taken during the robbery were found in Soffar’s possession and none
were recovered by police from their search of the residence of
Soffar. Notwithstanding the fact that Soffar was sentenced to
death on the theory that he committed these murders with Latt
Bloomfield, the State never charged Latt Bloomfield with any
involvement in these murders because there likewise was
insufficient corroborating evidence against him. Take away Max
Soffar’s illegally obtained confessions, and we have very serious
doubts that the State would have prosecuted Soffar. If he were
109
prosecuted without the confessions, we have even more serious
doubts the jury would have, or indeed could have, convicted him.
We therefore cannot say that the admission of Soffar’s illegally
obtained confessions at his capital murder trial was harmless
error.
III. CONCLUSION
Based upon all of the foregoing, we construe Soffar’s motion
for issuance of a certificate of probable cause to appeal as a
motion for issuance of a certificate of appealability, and we GRANT
him a certificate of appealability with respect to: 1) his claim
that the State violated his Fifth Amendment privilege against
compelled self-incrimination by interrogating him after he invoked
his right to counsel; 2) his claim that the State violated his
Sixth Amendment rights by interrogating him regarding an extraneous
offense presented during the penalty phase of his trial after he
had requested and been appointed counsel; and 3) his claim that he
was denied the effective assistance of counsel based upon his trial
counsel’s failure to investigate, develop, and present available
evidence with respect to the surviving witness’s statements to
police and failure to retain a ballistics expert or develop
ballistics evidence.
110
Having also determined that Soffar’s conviction and sentence
for capital murder are constitutionally infirm by virtue of the
State’s violation of Soffar’s right to counsel and his Fifth
Amendment privilege against compelled self-incrimination, we
REVERSE the order of the district court granting summary judgment
in favor of the Director, and REMAND this case to the district
court for entry of an order (i) granting Petitioner Max Alexander
Soffar’s petition for writ of habeas corpus; (ii) setting aside his
conviction and sentence for felony capital murder; and (iii)
ordering the release of Petitioner Max Alexander Soffar from
custody unless the State commences a retrial of the Petitioner
within 120 days.57 All pending motions are DENIED as MOOT.
REVERSED and REMANDED.
57
We would be remiss if we concluded this opinion without
recognizing the outstanding performance of Soffar’s habeas counsel,
James W. Schropp at Fried, Frank, Harris, Shriver and Jacobson, and
David M. Miles at Sidley & Austin, and their respective associates,
whose dedicated research, exhaustive investigation, and unwavering
perseverance was above and beyond the call of duty for pro bono
counsel.
111
EMILIO M. GARZA, Circuit Judge, dissenting:
A Texas jury found Max Alexander Soffar guilty of capital
murder in connection with a triple homicide at a suburban Houston
bowling alley. No physical evidence linked Soffar to the murder,
but he confessed to the crime after being questioned by Bruce
Clawson, a Galveston detective whom Soffar knew. Like the
majority, I am deeply disturbed by the police’s highly questionable
interrogation of Soffar.58 Nevertheless, due to our limited nature
of review under 28 U.S.C. § 2254, I am not convinced that the state
and federal courts erred in denying habeas relief. I must
regrettably dissent.
I
The majority offers a two-tiered analysis to support its claim
that the police violated Soffar’s Fifth Amendment right against
self-incrimination in procuring his confession. It first maintains
that the police should have ceased questioning because Soffar had
clearly invoked his right to an attorney. In the alternative, even
if Soffar did not unambiguously request counsel, the opinion
contends that Officer Clawson’s misrepresentations invalidated
Soffar’s waiver of right to counsel.
58
1 The gist of Soffar’s argument is that his 5th Amendment rights
2 were violated when (1) Soffar asked how he could get a lawyer, and
3 Officer Clawson responded if he could afford to hire a lawyer; (2)
4 Officer Clawson claimed that it could take between one day to one
5 month to obtain a court-appointed attorney, despite his knowledge
6 of Houston’s “72-hour” rule; and (3) Officer Clawson did not
7 respond when Max said, “so you’re telling me I’m on my own.”
-112-
The majority opinion’s first claim that Soffar had clearly
invoked his right to an attorney must meet a stringent standard.
The Supreme Court has held that a “suspect must unambiguously
request counsel” to trigger that constitutional right. Davis v.
United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 362
(1994) (requiring that a reasonable officer in the circumstances
would deem it as a request for an attorney). While a suspect does
not need to “speak with the discrimination of an Oxford don,” 512
U.S., at 459, 114 S. Ct. 2350, he must request an attorney so
clearly that a police officer need not “be forced to make difficult
judgment calls about whether the suspect in fact wants a lawyer.”
Id. at 461, 114 S. Ct. 2350. Indeed, the Supreme Court has said
that no gray area exists on this matter: “a statement either is
such an assertion of the right to counsel or it is not.” Id. at
459, 114 S. Ct. 2350 (citations omitted). A suspect must make a
clear request for counsel because courts refuse “to give any
‘talismanic quality’ to the mere word ‘attorney.’” Griffin v.
Lynaugh, 823 F.2d 856, 863, n.3 (5th Cir. 1987).
Soffar simply failed to request counsel in an unequivocal
manner. The record reflects that Soffar asked Officer Clawson
whether he should get counsel, how he could get counsel and how
long it would take to get appointed counsel. Courts have rejected
each and every one of the above questions as too ambiguous or
equivocal to constitute a “clear” invocation of right to counsel.
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First, statements asking for advice on whether to obtain an
attorney do not constitute a clear invocation of counsel. See
United States v. Posada-Rios, 158 F.3d 832, 867 (5th Cir. 1998)
(holding that a suspect’s statement that she “might have to get a
lawyer then, huh?” was not a clear request); see also Davis, 512
U.S. at 462, 114 S. Ct. 2350 (“Maybe I should talk to a lawyer” was
not a clear request). Second, courts have ruled that a suspect’s
inquiry into how he can obtain an attorney is ambiguous. See United
States v. Cruz, 22 F.3d 96, 97 (5th Cir. 1994) (holding that a
suspect’s statement that he was a “working man” who “couldn’t
afford an attorney” was not a clear request); see also Lord v.
Duckworth, 29 F.3d 1216, 1221 (7th Cir. 1994) (ruling that when a
suspect asks, “I can’t afford a lawyer but is there anyway I can
get one?,” courts do not consider it a “clear” request for
counsel). Last, courts have held that a suspect does not make a
clear request for counsel when he asks a police officer how long it
would take to get an attorney. See United States v. Lux, 905 F.2d
1379, 1382 (10th Cir. 1990).
Furthermore, as the district court noted, Officer Clawson’s
testimony in state court undermines the majority’s claim that
Soffar had made a clear request for an attorney.59 The state habeas
court, after conducting a thirteen-day evidentiary hearing, made a
59
1 The federal district court adopted the state habeas court’s
2 findings of fact.
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finding of fact in its 184-page opinion that, “Bruce Clawson did
not consider the applicant’s questions regarding an attorney an
invocation of the applicant’s rights” (emphasis added).60 The
majority opinion, however, maintains that “[t]his factual
finding. . .is not entitled to the heightened level of deference,”
and suggests that this court can adopt its own findings of fact.
I fail to see how we can ignore the presumption of correctness
generally given to a state court’s factual findings. See 28 U.S.C.
§ 2254(d) (1994) (a state court’s findings of fact “shall be
presumed to be correct”); Demosthenes v. Baal, 495 U.S. 731, 735,
110 S. Ct. 2223, 109 L. Ed. 2d 762 (1990) (“[a] state court’s
determinations on the merits of a factual issue are entitled to a
presumption of correctness on a federal habeas review.”)
The Supreme Court has held that a “habeas court may not
disregard this presumption unless it expressly finds that one of
the enumerated exceptions to § 2254(d) is met and it explains the
reasoning in support of that conclusion.” Burden v. Zant, 498 U.S.
433, 436-37, 111 S. Ct. 862, 112 L. Ed. 2d 962 (1991). The majority
opinion fails to cite any of the eight enumerated exceptions
mentioned in § 2254(d). Instead, it dismisses the state court’s
finding of fact by noting that Officer Clawson, at one point during
60
1 I agree with the majority that Officer Clawson’s impression is not
2 dispositive as to whether Soffar’s statements actually constituted an effective
3 invocation. However, our legal conclusion is substantially informed by factual
4 findings. And here we must give deference to the state court’s factual finding
5 that Clawson himself did not consider any of Soffar’s statements as a request.
-115-
the state habeas hearing, said that it was “obvious” that Soffar
“wanted an attorney.” Furthermore, the majority says that Officer
Clawson’s testimony is simply not credible because of his “admitted
role as the facilitator of custodial interrogation.” The majority
opinion then seemingly asserts its own factual finding that Officer
Clawson himself believed that Soffar had clearly invoked his right
to counsel.
While Officer Clawson at one point did say that it was
“obvious” that Soffar wanted an attorney, he answered differently
under further questioning. He ultimately answered no to the
question, “[a]t the time he made those questions or asked you those
questions[,] did you consider them an invocation of rights to an
attorney?” As the federal district court said in adopting the
state court’s findings of fact, “Clawson’s state court testimony
taken as a whole supports the finding of the state habeas court
‘that Bruce Clawson did not consider the applicant’s questions
regarding an attorney [to be] an invocation of the applicant’s
rights’” (emphasis added).61
61
1 During direct examination at the state habeas hearing, Officer
2 Clawson first said that he did not construe Soffar’s statements as
3 an invocation of counsel. Then he wavered, suggesting that he
4 thought it was “obvious” that he wanted an attorney. On cross-
5 examination, he reversed himself again and said he did not believe
6 that Soffar wanted an attorney. The state and federal habeas
7 courts construed Clawson’s testimony, taken as a whole, as denying
8 that Soffar had requested an attorney. A portion of transcript
9 from the state habeas hearing follows:
10 [Redirect examination of Officer Clawson]:
11 Q: And did you not believe that Max’s comments regarding an
(continued...)
-116-
61
(...continued)
12 attorney were intended to get him an attorney?
13 A: No. Well you see here is my–I’m sorry if you’ll allow me a
14 second what you see here is my conscious [sic]. I particularly
15 believe he needed it although I answered the question literally and
16 honestly [at the state trial] he did not ask for one.
17 Q: I understand that. I’m asking what you thought was his
18 purpose. You thought he really needed an attorney to deal with his
19 situation. You heard him asking questions of you about at attorney.
20 Did that not indicate to you that he was thinking of getting an
21 attorney?
22 A: Okay I’ll answer your question very literally, did not
23 indicate, yes. Yes.
24 Q: Did it not indicate to you that at that point he wanted an
25 attorney if one could be arranged for him?
26 A: I would have to speculate on the purpose of him asking the
27 question. . .
28 [After several sustained objections, the redirect examination
29 continued:]
30 Q: Did you draw any objection, conclusions based on everything
31 you heard and observed from Max and everything you observed with
32 regard to his situation which you make reference to in that
33 affidavit. What did you conclude that Max wanted at that point?
34 A: What did I conclude?
35 Q: Yes. . .
36 A: Well the obvious answer is that he wanted an attorney.
37 [Recross-examination of Officer Clawson:]
38 Q: Officer Clawson at that time you had the conversation with Max
39 Alexander Soffar did you in any way consider his questions to be an
40 invocation to his right to an attorney?
41 A: No as I–
42 Q: And is that somewhat inconsistent with what your testimony was
43 on redirect with Mr. Schropp?
44 A: Answer to Mr. Schropp’s question within my answer was in the
45 context of his question but I can see how you can take it as being
46 inconsistent yes.
47 Q: And what is your testimony then, did Max Alexander Soffar
48 invoke his right to an attorney?
49 A: Max Alexander Soffar never asked me for an attorney. . .
50 Q: At the time he made those questions or asked you those
51 questions did you consider them an invocation to his rights to an
52 attorney?
53 A: As I stated no.
54 Q: Had you considered them invocation to his right for an
55 attorney would you have ceased any question?
56 A: Yes. And I said I wouldn’t have allowed anyone else to talk
(continued...)
-117-
We cannot take out of context one statement from the habeas
hearing to impugn the state court’s finding of fact. Nor can we
make credibility judgments about a witness. A federal habeas court
must “more than simply disagree with the state court’s findings
before rejecting its factual determinations. Instead, it must
conclude that the state court’s findings lacked even ‘fair[]
support’ in the record.” R.C. Marshall v. Lonberger, 459 U.S. 422,
432, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983). Here, there was more
than fair support in the record to sustain the state court’s
factual finding: Officer Clawson ultimately stated that he did not
believe that Soffar had wanted an attorney.
Even if we assume that the state habeas court erred, we cannot
make our own determination of the facts because we are not a fact-
finding body. Rather, we must remand it to the district court for
an evidentiary hearing to determine the facts. See Farmer v. E.B.
Caldwell, 476 F.2d 22, 24 (5th Cir. 1973) (“If there is . . .merit
as to the adequacy of the state habeas proceedings an evidentiary
hearing was required of the federal habeas court”) (emphasis
added); Fritz v. Spalding, 682 F.2d 782, 785 (9th Cir. 1982) (if
“the state-court was otherwise deficient,” then “the petitioner is
entitled to an evidentiary hearing”); United States ex. rel.
Williams v. J.E. LaVallee, 487 F.2d 1006, 1014 (2nd Cir. 1973) (if
61
(...continued)
57 to him.
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there is “substantial doubt” as to the state court’s findings, then
the federal appeals court “must. . .remand to the district court
for an evidentiary hearing on the[] unresolved issues”) (emphasis
added).
During the state proceedings, Officer Clawson testified that
Soffar had not asked for an attorney. The majority opinion
characterizes this testimony as “technically accurate,” but not the
“whole truth” because “he kept substantial other parts of the
picture to himself, and from the jury, because he was not
specifically asked.” I would again stress that if the state court
erred in making factual findings, we must remand it to the district
court for further fact-finding.
The majority tries to compensate for the ambiguity of Soffar’s
statements by reading too much into the colloquy between Officer
Clawson and Soffar. For instance, the majority claims that
Soffar’s question, “how could [I] get a lawyer?” really meant,
“well, I’m innocent, so how do I get my lawyer?” because Officer
Clawson had earlier told him to obtain a lawyer if he was innocent.
Such a strained interpretation “ignore[s] the plain meaning of his
words.” Cruz, 22 F.3d 8, n.9 (5th Cir. 1994) (citations omitted)
(holding that a court should not disregard the plain meaning of the
defendant’s words to find clear invocation). Officer Clawson
testified in state court that he interpreted Soffar’s
questions))e.g., “how could [I] get a lawyer”))as a procedural
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inquiry into how he could obtain an attorney, rather than as a
clear request for one. At best, the meaning of Soffar’s question
is unclear.
The majority further maintains that Officer Clawson should
have construed Soffar’s statements as a request for an attorney,
due to their prior relationship and Soffar’s admitted inability “to
think much farther into the future than the present day.” I have
little doubt that Soffar was weighing his options and considering
requesting an attorney. But the fact remains that Soffar never
unambiguously requested an attorney. Supreme Court has required
this high bar of clarity, although it has recognized that this rule
“might disadvantage some suspects who))because of fear,
intimidation, lack of linguistic skills, or a variety of other
reasons))will not clearly articulate their right to counsel
although they actually want to have a lawyer present.” Davis, 512
U.S. at 460, 114 S. Ct. 2350. The Supreme Court justified this
result on the ground that a suspect has other important
constitutional sources of protection. See id., at 462, 114 S.Ct.
at 2350 (refusing to create a “third layer of prophylaxis to
prevent police questioning when the suspect might want a lawyer.”)
II
I also cannot agree with the majority’s alternative claim that
Officer Clawson’s misleading answers invalidated Soffar’s waiver of
the right to counsel. I believe that Officer Clawson’s dubious
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statements could not have nullified Soffar’s waiver of his Miranda
rights, because Soffar had already waived them by the time Officer
Clawson started his fateful interrogation.62
In evaluating whether a suspect validly waived his Miranda
rights, we must see if (1) the relinquishment of the right was
voluntary in the sense that it was the product of a free and
deliberate choice; and (2) the waiver was made with a full
awareness of the right being abandoned and the consequences of
doing so. See Moran v. Burbine, 475 U.S. 412, 421,106 S. Ct. 1135,
89 L. Ed. 2d 410 (1985).
Over the course of three hours, Soffar explicitly or
implicitly waived his right to counsel and made incriminating
comments after being read his Miranda rights at least four times.
62
1 The majority seemingly concedes that Soffar had earlier waived
2 his Miranda rights, but claims that he had invoked his right to
3 remain silent when Detective Schultz interrogated him. The
4 majority points out that Officer Clawson testified at the state
5 habeas hearing that Detective Schultz told him that he had hit a
6 “brick wall,” and asked Clawson to interrogate him. Thus,
7 according to the majority, Soffar had to re-waive his Miranda
8 rights before Officer Clawson could begin questioning him. I do not
9 believe that Soffar had invoked his right to remain silent.
10 Officer Clawson did testify that Detective Schultz said he had hit
11 a “brick wall,” but Detective Schultz himself denied that and said
12 that Soffar did not invoke his right to remain silent. After
13 hearing the two dueling testimonies, the state court ultimately
14 made the finding of fact that “the applicant’s refusal to talk to
15 certain officers or in the presence of officers was not an
16 invocation of the applicant’s right to remain silent.” Moreover,
17 the federal district court held that Soffar had failed to make a
18 clear invocation of his right to remain silent. In short, Soffar
19 had already waived his Miranda rights, and did not need to re-waive
20 them.
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First, Officer Raymond Willoughby arrested Soffar on the stolen
motorcycle charge at 8:00 a.m. August 5th, he read Soffar his
Miranda rights. On the ride back to the police station, Soffar
voluntarily made incriminating statements that he was guilty of
“bigger things” and said he had knowledge of the bowling alley
murders in Houston. Second, at 9:45 a.m., a magistrate judge
repeated to Soffar each of his Miranda rights. Soffar signed a
form acknowledging his understanding of these rights. Third, at
around 10:30 a.m., Officer Clawson read Soffar his Miranda rights
again. Clawson testified in his state habeas hearing that he did
not have to convince Soffar to talk to the police; he talked out of
his own volition, waiving his Miranda rights. See United States v.
Andaverde, 64 F.3d 1305, 1313 (9th Cir. 1995) (holding that a
suspect can expressly or implicitly waive his rights). While the
two briefly discussed the bowling alley murders, Soffar mentioned
a possible accomplice, Latt Bloomfield. Officer Clawson warned
Soffar the gravity of the proceedings, and told him that he might
receive the death penalty if found guilty. A few minutes later,
Detective Schultz joined Officer Clawson. Finally, Detective
Schultz again read Soffar his Miranda rights, and the potential
punishment if convicted. Despite this second warning about the
potentially harsh consequences of a conviction, Soffar voluntarily
mentioned details of the murder. Only after all these encounters
and Miranda warnings did Officer Clawson engage in a conversation
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where Soffar broached the topic of possibly obtaining an attorney.
In light of these facts, I do not see how Officer Clawson’s
misleading statements could have retroactively invalidated Soffar’s
waiver of right to counsel, given that Soffar had already waived
that right. Officer Clawson did not need to read Soffar his
Miranda rights for the fifth time before interrogating him again.
There is “no requirement that an accused be continually reminded of
his [Miranda] rights once he has intelligently waived them.”
United States v. Anthony, 474 F.2d 770, 774 (5th Cir. 1973); see
also United States v. Taylor, 461 F. Supp. 210, 214 (S.D.N.Y. 1978)
(“Once a defendant has waived his right to counsel, there is no
requirement that Miranda warnings be repeated every time he is
questioned.”) Officer Clawson had no duty to re-read Soffar his
rights because Soffar “must have known that his rights had not
materially changed simply because he. . .faced a new interrogator.”
Id. See also Evans v. McCotter, 790 F.2d 1232, 1236 (5th Cir.
1986) (holding that because a suspect was given Miranda warnings
twice before, he was not entitled to another one three hours
later); United States v. Weekley, 130 F.3d 747, 751 (6th Cir. 1997)
(ruling that a “re-warning is not required simply because time has
elapsed.”)
As the district court pointed out, there is nothing in the
record to suggest that Soffar))who had been given four Miranda
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warnings in the course of about three hours))suddenly was no longer
aware of, or misunderstood his rights. It is “self-evident that
one who is told he is free to refuse to answer questions is in a
curious posture to later complain that his answers were compelled.”
Colorado v. Spring, 479 U.S. 564, 576, 107 S. Ct. 851, 93 L. Ed. 2d
954 (1987). At no point during this time did Soffar “assert a
desire to be represented by counsel or to remain silent at any
time.” Weekley, 140 F.3d at 751. Had he done so, he would have
needed to re-waive his Miranda rights before the police could
interrogate him. See Edwards v. Arizona, 451 U.S. 477, 484, 101
S.Ct.1880, 68 L. Ed. 2d 378 (1981) (holding that until a suspect
requests counsel, the police can interrogate him). Soffar,
however, never clearly asserted his right to counsel or invoked his
right to remain silent.
The majority’s reliance on Miranda’s admonishment that an
accused should not be “threatened, tricked or cajoled into a
waiver” is inapposite. See Miranda, 384 U.S. 436, 476, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966). This rule does not apply here because
Soffar has already waived his Miranda rights. The real question
here is what effect misleading answers have on the ability of a
suspect))who has been read his Miranda rights and has waived
them))to request clearly an attorney.
I believe that a recent Fourth Circuit case with virtually
identical facts is instructive in regards to this question. In
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Mueller v. Angelone, 181 F.3d 557 (4th Cir. 1999), the suspect, who
had waived his Miranda rights, asked at one point during the
interrogation, “Do you think I need an attorney here?” A police
officer shook his head, shrugged his shoulders, and told him,
“You’re just talking to us.” The suspect argued that his initial
waiver was rendered invalid because of the misleading answers.63
The court rejected that argument and said that his “waiver remained
knowing, intelligent, and voluntary even after [the officer’s
misleading] response.” Id. at 575. It pointed out that the
suspect had been read his rights, had signed a Miranda waiver form
few months before during the initial investigation, and had waived
his rights on three prior, non-related occasions. Id (citing Moran
v. Burbine, 475 U.S. 412, 106 S. Ct. 1135). Similarly, Soffar had
been read his Miranda rights four times in three hours, had signed
a form in front of a magistrate judge acknowledging his
understanding of his rights, had been warned twice about possibly
receiving the death penalty if convicted, and had numerous prior
encounters with law enforcement. Soffar’s handwritten letter to
his attorney belies the claim that he did not understand his
Miranda rights: “I told them I wanted to talk to [B]ruce Clawson
about the bowling alley. I knew it would be hell on me if I said
anything but at that point I didn’t care” (emphasis added).
63
1 Citing Davis, the court said that the suspect failed to make
2 a clear request for an attorney.
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The majority cites a line of Fifth Circuit cases to show that
Officer Clawson’s misleading statements essentially invalidated
Soffar’s waiver of right to counsel. See Nash v. Estelle, 597 F.2d
513 (5th Cir. 1979); Thompson v. Wainwright, 601 F.2d 768 (5th Cir.
1979); United States v. Cherry, 733 F.2d 1124 (5th Cir. 1984).
According to the majority, this line of Fifth Circuit cases had two
key holdings: first, if a suspect makes an ambiguous request for an
attorney, the police must ask clarifying questions to determine his
true wishes; second, a police officer cannot mislead a suspect into
abandoning his request for an attorney in the guise of asking
clarifying questions. The majority acknowledges that the Supreme
Court in Davis abrogated the first holding. See Davis, 512 U.S. at
452, 114 S. Ct. 2350 (ruling that police officers no longer have a
duty to ask clarifying questions). However, the majority contends
that Davis left Fifth Circuit’s second holding unscathed. Thus,
the Fifth Circuit, post-Davis, holds that if a police officer
chooses to ask clarifying questions, he cannot use it as a guise to
deceive the suspect into implicitly waiving his right to counsel.
According to the majority, Officer Clawson violated Soffar’s
constitutional right because he chose to ask clarifying questions,
and then used misleading statements to force Soffar to “essentially
waive” his right to counsel.
Assuming this distinction between Davis and the Fifth Circuit
cases is valid, it still means that the Supreme Court has not
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directly addressed whether or not deceptive clarifying questions
violate the Fifth Amendment.64 Put another way, the Fifth Circuit
holdings cannot apply in this case because of Teague’s prohibition
against “new” constitutional rules in habeas review. See Teague
v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). In
determining whether a rule is “new,” we must “survey the legal
landscape as it then existed and determine whether a state court
considering the defendant’s claim at the time his conviction became
final would have felt compelled by existing precedent to conclude
that the rule he seeks was required by the Constitution.” Fisher v.
Texas, F.3d 295, 305 (5th Cir. 1999) (citations omitted) (emphasis
added).
The Fifth Circuit holdings cited by the majority constitute a
“new” rule under Teague because state courts generally are not
“compelled” to follow federal circuit case law. See, e.g., Glock
v. Singletary, 65 F.3d 878, 885 (11th Cir. 1995) (holding that
federal courts of appeal “do not ‘dictate’ a particular rule to
state courts”); Clemmons v. Delo, 124 F.3d 944, 955, n.11 (8th Cir.
1997) (assuming without decision that “when the Court says ‘firmly
64
1 The majority opinion says that the Supreme Court made
2 “recognition” of the Fifth Circuit’s Thompson holding in Smith v.
3 Illinois, 469 U.S. 91, 105 S. Ct. 490, 83 L. Ed. 2d 488 (1984). I
4 would only add that the Supreme Court recognized Thompson only to
5 the extent that it noted a circuit split on the issue of ambiguous
6 invocation of counsel. It expressly said that it “need not
7 resolve this conflict in the instant case.” 469 U.S. at 91, 105
8 S. Ct. 490.
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dictated by precedent,’ it means Supreme Court precedent.”) But
see, e.g., Bell v. Hill, 190 F.3d 1089 (9th Cir. 1999) (holding
that state courts can be compelled to follow federal circuit case
law if “foreordained” by Supreme Court precedent). Basic
principles of federalism affirm this view. See Lockhart v.
Fretwell, 506 U.S. 364, 376, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993)
(Thomas, J., concurring) (“The Supremacy Clause demands that state
law yield to federal law, but neither federal supremacy nor any
other principle of federal law requires that a state court’s
interpretation of federal law give way to a (lower) federal court’s
interpretation. . .An Arkansas trial court is bound by this
Court’s. . .interpretation of federal law, but if it follows the
Eighth Circuit’s interpretation of federal law, it does so only
because it chooses to and not because it must.”)
III
I find the facts of this case disturbing. Officer Clawson’s
questioning of Soffar certainly raises many troubling questions
about his interrogation technique. Nevertheless, I must emphasize
that we are not in the position of a state appeals court, let alone
a trial court. Under § 2254 and Teague, we only have a limited
review of both the facts and the law. As much as I may sympathize
with the result of the majority’s opinion, I believe that our
precedents dictate the opposite outcome. I respectfully dissent.
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