Hardaway, Derrick v. Young, Donald S.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3450
DERRICK HARDAWAY,
Petitioner-Appellee,
v.
DONALD S. YOUNG, Warden,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 3963—Milton I. Shadur, Judge.
____________
ARGUED NOVEMBER 26, 2001—DECIDED SEPTEMBER 11, 2002
____________
Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. At the age of 14, Derrick
Hardaway confessed under police questioning to the mur-
der of 11-year-old Robert Sandifer. An Illinois trial court
denied Hardaway’s motion to suppress his confessions as
involuntary, and he was convicted of the crime and sen-
tenced to 45 years in prison. After exhausting his state
court remedies, Hardaway filed a petition for a writ of
habeas corpus. The district court granted the petition, find-
ing that in light of Hardaway’s age, the lack of a friendly
adult presence, and the length of the interrogation, Hard-
away’s confession was involuntary and suppression was
required. Because we reluctantly conclude that the Illi-
2 No. 01-3450
nois courts’ application of the totality of the circum-
stances test to Hardaway’s confession was not an unrea-
sonable application of clearly established Supreme Court
precedent, we reverse the judgment of the district court.
We do so, however, with the gravest misgivings and only
in light of the stringent standard of review that ap-
plies under the applicable law, because we are convinced
that the many other indicia under Illinois law of the special
care that must be exercised with children as young as 14
strongly suggests that an injustice was committed here.
I
On August 28, 1994, 11-year-old Robert “Yummy”
Sandifer, a member of the Black Disciples street gang in
Chicago’s Roseland neighborhood, shot and killed 14-year-
old Shavon Dean and wounded two other children. Sandifer
himself then disappeared. An intensive police search for
Sandifer ensued until Sandifer’s body was found under a
viaduct at 108th Street and Dauphin Avenue shortly after
midnight on September 1. He had been shot twice in the
back of the head.
In the early morning hours of September 1, Cassandra
Cooper telephoned the police and told them that Sandifer
had been at her home around 11:30 p.m. the night before
and that her daughter Jimesia saw Sandifer leave their
porch with Hardaway and his older brother Cragg. At
around 8 a.m., the police went to the Hardaway home.
Hardaway was roused from sleep, told of the investigation,
and, after conferring with his father, agreed to accompany
the officers to the police station to help with the inves-
tigation. Hardaway’s father was offered a ride to the sta-
tion but declined, choosing instead to wait for his son
Cragg to return home. Hardaway dressed and was trans-
ported to the police station unhandcuffed and placed in
an unlocked interview room at about 8:30 a.m.
No. 01-3450 3
Two detectives, Robert Lane and Romas Arbataitis,
questioned Hardaway at that time. Hardaway admitted
to knowing Sandifer but stated that he had last seen
him three days earlier. The detectives then left the inter-
view room and Arbataitis spoke to Jimesia, who con-
firmed her mother’s report that Sandifer and Hardaway
had been together that very night. Jimesia said that
Hardaway had approached Sandifer and another boy, Mike
Griffin, who were both sitting on the porch of her home,
and told Sandifer “that he had to go with Derrick, that
[Cragg] and the boys wanted to take him out of town.”
At about 10:30 a.m., the detectives interviewed Hardaway
for a second time. This time they read him his Miranda
rights and confronted him with Jimesia’s statements.
Hardaway then changed his story, essentially admit-
ting to Jimesia’s version of events. He said that Sandifer
and Griffin followed him off the porch and went to a wait-
ing car, driven by Cragg. Cragg then drove off with
Sandifer while Hardaway and Griffin walked home. The
detectives’ conversation with Hardaway lasted about 15
minutes and he was then left alone in the interview room.
Over the next six hours he was briefly questioned on
matters such as the name of Cragg’s girlfriend, provided
with lunch, and occasionally checked on. Most of his time,
however, was spent alone.
During the afternoon, Griffin was located and inter-
viewed by the police. He confirmed that he and Sandifer
walked to Cragg’s car but stated that Hardaway had got-
ten into the car with Sandifer and that the brothers had
refused to give Griffin a ride home because “they were
in too deep.” At 4:30 p.m., two new detectives, John Mc-
Cann and James Oliver, reiterated the Miranda warn-
ings and then interviewed Hardaway, who repeated his
story. McCann informed Hardaway that Griffin had said
something different and walked him down the hall to
show him that Griffin was in another interview room. At
4 No. 01-3450
that point, Hardaway admitted that he did get into Cragg’s
car with Sandifer and that he was present when Cragg
shot Sandifer under the viaduct shortly thereafter.
Questioning then ceased while an Assistant State’s
Attorney, Theresa Harney, and a youth officer, James
Geraci, were contacted. At approximately 7:00 p.m.,
McCann, Harney, and Geraci met with Hardaway. Harney
told Hardaway that Geraci was a youth officer and that he
was present as an observer and to assist Hardaway if he
had any questions or problems. Geraci then asked Hard-
away if there was anything he could assist him with, to
which Hardaway responded no. From that point on-
ward, Geraci did absolutely nothing to assist Hardaway.
Harney read Hardaway his Miranda rights yet again
and informed him again that he could be tried as an
adult. Hardaway then explained his rights back to
Harney in his own words, stating that he did not have
to speak with Harney if he didn’t want to, that anything
he told Harney she could tell a judge in a trial against
him, that he could have an attorney there when he was
questioned about the case, even if he or his family couldn’t
pay for one, and that his case could be moved out of juvenile
court to adult court if the judge decided.
Hardaway gave a statement to Harney in which he
again confessed to the crime and then agreed to repeat
the statement to a court reporter. Another break was
taken until the court reporter arrived at 10:45 p.m. At
that time, Hardaway admitted that he and Cragg had
been ordered by the leader of the Black Disciples to get
rid of Sandifer, that he approached Sandifer on the
Coopers’ porch and brought him back to Cragg’s car, that
he accompanied Cragg and Sandifer to the viaduct, and
that he watched out for police while Cragg shot Sandifer.
The state courts found that Hardaway’s parents never
tried to come to police headquarters to see their son, and
No. 01-3450 5
Hardaway never asked for his parents or for an attorney.
He was not physically abused or threatened by the detec-
tives in any way. Hardaway had 19 previous arrests for
charges including robbery, attempted criminal sexual
assault, unauthorized use of a weapon, and delivery of a
controlled substance, but he had never faced anything
as serious as a murder charge. He had appeared in juve-
nile court with appointed counsel on seven occasions;
there is no evidence, however, whether he had ever been
advised of his Miranda rights on those occasions, and it
appears that he had little or no experience in the adult
criminal justice system.
Hardaway moved to suppress his confession. The trial
court denied the motion, finding that the police had never
prevented Hardaway from seeing his parents or an attor-
ney; that a youth officer was present to assist Hardaway
at his last two confessions; that there were no threats
or abuse; that there was no evidence Hardaway suffered
from any mental incapacity or handicap; and that he
was already more familiar with the criminal justice sys-
tem and with attorneys than most ordinary adult citi-
zens would be in light of his numerous prior court refer-
rals. It therefore found the confession to be voluntary
under the totality of the circumstances. The Illinois Ap-
pellate Court affirmed and the Illinois Supreme Court
denied review, leading to this timely petition for a writ
of habeas corpus.
II
The Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), 28 U.S.C. § 2254, governs the grant of
a writ of habeas corpus here, because Hardaway’s peti-
tion was filed after the effective date of that statute. Be-
fore a writ may issue, a federal court must find that the
challenged state court decision is either “contrary to” or “an
6 No. 01-3450
unreasonable application of” clearly established federal
law as determined by the Supreme Court. Williams v.
Taylor, 529 U.S. 362, 404-05 (2000). The district court
found (and Hardaway here concedes) that the decision to
admit the confession was not contrary to clearly estab-
lished federal law; it instead focused on the unreasonable
application inquiry. “A state court decision that correctly
identifies the governing legal rule but applies it unreason-
ably to the facts of a particular prisoner’s case certainly
would qualify as a decision ‘involv[ing] an unreasonable
application of . . . clearly established Federal law.’ ” Id. at
407-08. A state court decision must be more than incor-
rect from the point of view of the federal court; AEDPA
requires that it be “unreasonable,” which means something
like lying well outside the boundaries of permissible
differences of opinion. Id. at 411. We review the findings
of both the state and district court “de novo but with a
grant of deference to any reasonable state court decision.”
Anderson v. Cowan, 227 F.3d 893, 897 (7th Cir. 2000).
The voluntariness of a confession, whether made by a
juvenile or an adult, is evaluated on the basis of the total-
ity of the circumstances surrounding that confession.
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);
Fare v. Michael C., 442 U.S. 707, 725 (1979). In juvenile
cases, the totality approach requires an “evaluation of the
juvenile’s age, experience, education, background, and in-
telligence” as well as the circumstances regarding the
confession. Fare, 442 U.S. at 725. The Supreme Court in the
past has spoken of the need to exercise “special caution”
when assessing the voluntariness of a juvenile confession,
particularly when there is prolonged or repeated question-
ing or when the interrogation occurs in the absence of
a parent, lawyer, or other friendly adult. In re Gault, 387
U.S. 1, 45 (1967); Gallegos v. Colorado, 370 U.S. 49, 53-55
(1962); Haley v. Ohio, 332 U.S. 596, 599-601 (1948). In this
case, the trial court correctly recognized that it was re-
No. 01-3450 7
quired to apply a totality of the circumstances analysis
and also stated, “I do realize and I do take into considera-
tion that the defendant is a juvenile. And that this court
must take great care to insure that the admission was
voluntary.” The Illinois Appellate Court also stated that
it would scrutinize the juvenile confession “with particu-
lar care.” People v. Hardaway, 718 N.E.2d 682, 693 (Ill.
App. Ct. 1999). Notwithstanding these protestations, the
district court found that the analysis of both state courts
was an unreasonable application of the totality of the
circumstances test in light of Haley, Gallegos, and Gault,
and it therefore issued the writ.
The district court had good reason for doing so, in that
it relied on several Supreme Court decisions that had
held that the Fifth Amendment rights of a juvenile had
indeed been violated. In Haley, a 15-year-old boy was
arrested at midnight and interrogated for five straight
hours by six officers in relays of one or two officers at
a time. At 5 a.m., after being falsely told that two other
boys had implicated him, the defendant confessed. Haley,
332 U.S. at 598. He was then held for three more days
before being charged while his mother and an attorney
she had retained were rebuffed in attempts to see him. Id.The Supreme Court found this confession involuntary
because “[t]he age of petitioner, the hours when he was
grilled, the duration of his quizzing, the fact that he had
no friend or counsel to advise him, the callous attitude of
the police towards his rights combine to convince us that
this was a confession wrung from a child by means which
the law should not sanction.” Id. at 600-01. Hardaway’s
case is less egregious, in that there were no efforts to
keep his parents away or to confront him with false testi-
mony, and he was held for less than one day rather
than three. There were also lengthy breaks in the inter-
rogations, rather than the five grueling hours that Haley
was forced to endure.
8 No. 01-3450
Gallegos, in contrast, is closer to the mark. In that case,
a 14-year-old boy was arrested on assault and robbery
charges; he “immediately” admitted to the crime. Gallegos,
370 U.S. at 50. After his arrest, he was locked for five
days in juvenile hall, where his mother was not permitted
to see him. He signed a full and formal confession at the
end of the week. During that time, he never asked to see
his parents or an attorney. The Court admitted that
there was no prolonged questioning or use of fear to
break down the defendant, but it found that under “the
totality of the circumstances” the five-day detention and
refusal to permit the boy’s mother to see him gave the
case an “ominous cast.” Id. at 54. It concluded that “a 14-
year-old boy, no matter how sophisticated, is unlikely
to have any conception of what will confront him when he
is made accessible only to the police . . . . He would have
no way of knowing what the consequences of his confes-
sion were without advice as to his rights—from someone
concerned with securing him those rights.” Id. The Court
therefore found that the formal confession had to be
suppressed. Id. at 55.
In many respects, this case is quite similar to Gallegos.
Like Gallegos, Hardaway was only 14 at the time of his
arrest. He was questioned for a longer time than Gallegos
before his first confession, and no friendly adult was
present to explain his rights to him until many hours
later (even if we assumed that the passive Geraci served
that function). Thus, reading the Gallegos decision in
isolation, we would likely affirm the district court’s judg-
ment.
Later decisions, however, indicate that the mere ab-
sence of a friendly adult is by itself insufficient to require
suppression of a juvenile confession. In Fare, the Su-
preme Court held that a totality of the circumstances
analysis was adequate “to take into account those spe-
cial concerns that are present when young persons, often
No. 01-3450 9
with limited experience and education and with imma-
ture judgment, are involved.” 442 U.S. at 725. Turning
to the specific facts of the case before it, the Court
found voluntary the confession of a 16-year-old with a
prior criminal record and no signs of insufficient intelli-
gence who had been subjected to no threats, intimida-
tion, or trickery, despite the absence of a friendly adult.
Id. at 726-27. Since Fare was decided, Gallegos has been
cited just twice by the Supreme Court, both times as
support for a “totality of the circumstances” or “compound
influence” analysis to analyzing the voluntariness of
confessions. See Dickerson v. United States, 530 U.S. 428,
434 (2000); Miller v. Fenton, 474 U.S. 104, 116 (1985).
The Illinois state courts knew that they were supposed
to apply a totality of the circumstances approach when
evaluating Hardaway’s claims, and they claimed to have
done so. The district court agreed that the state courts
used the correct test (and thus were not acting “contrary
to” applicable law), but that they did so unreasonably
by failing adequately to consider three factors: Hard-
away’s age; the de facto absence of a friendly adult; and
the length and nature of the interrogation.
Age is clearly a relevant factor in this case, as it is in
many areas of the law. Children under the age of 16 are
treated differently from adults under Illinois law in a
host of different ways. They may not marry, 750 ILCS
5/208, vote, 10 ILCS 5/3-1, serve on a jury, 705 ILCS 305/2,
or make a will, 755 ILCS 5/4-1. Restrictions are placed
on their ability to work, 820 ILCS 205/1, to smoke, 720
ILCS 675/1, to operate a motor vehicle, 625 ILCS 5/6-107,
to withdraw from compulsory education, 105 ILCS 5/26-1,
and to travel outdoors between midnight and 6:00 a.m., 720
ILCS 555/1. They cannot purchase airline tickets, 720 ILCS
5/10-8, consent to medical care, 410 ILCS 210/1, attend
a raffle, 230 ILCS 15/4, or pierce their bodies, 720 ILCS
5/12-10.1, without parental permission. See also United
10 No. 01-3450
States v. Shannon, 110 F.3d 382, 386 (7th Cir. 1997) (noting
various state limitations on ability of minors to consent
to sexual activity with adults). It is thus somewhat in-
congruous that the state of Illinois believes that children, in
whose decisions the state has so little confidence in other
areas, should be subjected to questioning for major crimes
they are suspected of having committed without the con-
tinuous presence and assistance of a friendly adult.
The Constitution too affords children rights that cannot
always be equated with those of adults. See, e.g., Planned
Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74
(1976); Gault, 387 U.S. at 13. Constitutional distinctions be-
tween minors and adults are recognized for three reasons:
“the peculiar vulnerability of children; their inability to
make critical decisions in an informed, mature manner;
and the importance of the parental role in child rearing.”
Bellotti v. Baird, 443 U.S. 622, 634 (1979). Thus, children
may be required to consult with a parent or other friend-
ly adult before obtaining an abortion, id. at 640, and
they may in some circumstances be tried in juvenile
court proceedings without a jury trial or certain other
precautions, but also without risk of the imposition of
adult punishments, to be served in adult institutions.
McKeiver v. Pennsylvania, 403 U.S. 528, 545 (1971), Gault,
387 U.S. at 30.
The difficulty a vulnerable child of 14 would have in
making a critical decision about waiving his Miranda
rights and voluntarily confessing cannot be understated.
Indeed, Hardaway argues that we should interpret Gallegos
to impose a per se rule that no child under the age of
16 may waive his rights or make a voluntary confes-
sion without a parent or guardian present. We consider
this an extremely close question, but we conclude in the
end that we are foreclosed from pursuing that path. In
the first place, the Fare decision, decided nearly two
decades after Gallegos, makes quite clear that all juvenile
No. 01-3450 11
confessions are to be assessed under the totality of the
circumstances standard, and that no one factor will be
dispositive. Fare, 442 U.S. at 725-27.
Since the defendant in Fare was 16, it might be pos-
sible to impose a per se rule at a lower age, such as 14, or
10, or 5. Some state laws, such as those regarding em-
ployment, marriage, and operation of a motor vehicle,
routinely make distinctions between those over and
under age 16, and the Supreme Court has recognized
such a distinction as a constitutional matter under the
Eighth Amendment in regard to the death penalty. Com-
pare Stanford v. Kentucky, 492 U.S. 361 (1989) (upholding
execution of 16-year-old) with Thompson v. Oklahoma,
487 U.S. 815 (1988) (prohibiting execution of 15-year-
old). But there is no support in clearly established Su-
preme Court precedent for extending this isolated ex-
ample to the Fifth Amendment context. Even Gallegos
relied heavily on the “compound of . . . influences” and
“totality of circumstances,” including the failure to notify
the defendant’s mother, the length of his detention, and
the failure to bring him timely before a juvenile court
judge, rather than on age alone. Id. at 55. Also cutting
against a per se rule (at least as to children of Hard-
away’s age) is the fact that this court has itself upheld on
habeas review a murder conviction based on the un-
counseled confession of a 14-year-old. Johnson v. Trigg,
28 F.3d 639, 642 (7th Cir. 1994). Although we may not
apply a per se rule, youth remains a critical factor for our
consideration, and the younger the child the more carefully
we will scrutinize police questioning tactics to determine
if excessive coercion or intimidation or simple immatur-
ity that would not affect an adult has tainted the juvenile’s
confession. Id. at 642.
Keeping Hardaway’s extreme youth in mind, we turn to
the second factor in our analysis: the fact that there was
no friendly adult presence to guard against undue police
12 No. 01-3450
influence. Hardaway’s parents chose not to come to the
station with him, and he never requested an attorney.
The state courts did note that Youth Officer Geraci was
present at the 7:00 and 10:45 p.m. statements, but we agree
with the district court that this fact is meaningless. As far
as the record shows, Geraci provided about as much
assistance to Hardaway as a potted plant. (Although it is
true that Geraci might have served as a substitute for a
videotape, there is no assurance that he would have been
as reliable as a tape, even acknowledging that tamper-
ing is a risk with tapes. Tampering of a sort can also
happen with live witnesses, either unintentional or inten-
tional: a person is subject to memory lapses, and could
even have an incentive to support the police version of
events.) When Geraci first entered the room he informed
Hardaway that he was there to help him and would assist
him if he had any questions. There is no difference be-
tween this statement and what any other police officer,
such as the “good cop” in a good cop/bad cop routine, might
say to a suspect. The fact that Geraci then remained
mute while Harney and McCann questioned Hardaway
at length further shows he was doing little more than
fulfilling the minimum requirements imposed by state
law. We wish to make it clear that a state-provided youth
officer who functions as nothing more than an observer
will not be considered a friendly adult presence for purposes
of the totality of the circumstances test. Cf. People v.
McDaniel, 762 N.E.2d 1086, 1097-98 (Ill. App. Ct. 2001)
(reversing conviction under state law where youth officer
took no interest in protecting defendant’s welfare).
Despite this fact, the absence of a friendly adult at
Hardaway’s confession cannot be deemed dispositive. “[N]ei-
ther federal statutory nor constitutional law requires that
a juvenile’s parents be notified prior to obtaining a confes-
sion.” Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).
Even refusing a child’s request to have a parent or other
No. 01-3450 13
friendly adult (other than a lawyer) present is not enough
to suppress the confession if other factors indicate that
the confession was voluntary, and Hardaway made no
such request here. Fare, 442 U.S. at 718; United States
ex rel. Riley v. Franzen, 653 F.2d 1153, 1162-63 (7th Cir.
1981). However, “in marginal cases—when it appears the
officer or agent has attempted to take advantage of the
suspect’s youth or mental shortcomings—lack of parental or
legal advice could tip the balance against admission.”
United States v. Wilderness, 160 F.3d 1173, 1176 (7th Cir.
1998); see also Johnson, 28 F.3d at 644-45 (finding inter-
rogation of 14-year-old while mother was also being held
in custody did not violate the Due Process Clause).
We therefore must operate under the following proce-
dural framework: the mere fact that Hardaway was 14 and
questioned without an adult present does not by itself
render his confession involuntary, but it does require
that a court conduct a searching review of the facts to
ascertain whether any undue intimidation or other forms
of pressure caused him to confess involuntarily. The dis-
trict court identified only one such factor, the duration of
the interrogation. Hardaway was initially brought to the
police station at 8:30 a.m. and briefly interviewed. By 10:30
a.m. he was considered a suspect, had received his Miranda
warnings, and had been questioned again for another
15 minutes, at which time he changed his story slightly.
At that point he was left more or less alone for over five
hours. At 4:30 p.m., Hardaway was notified that Griffin was
telling police a different story, and he then confessed. That
interrogation took about one hour. Another delay ensued
while Harney was contacted, and she then joined the
police in interrogating Hardaway from 7:00 to 8:00 p.m.
Hardaway was detained again while a court reporter was
located to take a transcribed statement from 10:45 p.m.
until midnight. The statements made by Hardaway at 4:30,
7:00, and 10:45 p.m. were in all material respects identical.
14 No. 01-3450
It is thus somewhat misleading for Hardaway to con-
tend that he was interrogated for 16 straight hours by
“relays” of officers and deprived of sleep. We fail to under-
stand why Hardaway should have been provided a place
to sleep between the hours of 8:30 a.m. and 4:30 p.m. when
most eighth graders would not be sleeping anyway. The
mere fact that two officers questioned Hardaway twice
in the morning and two different officers spoke to him at
4:30 p.m., with a total interrogation time prior to the initial
confession of less than 90 minutes, presents a markedly
different scenario from the five grueling hours of inter-
rogation experienced in Haley. 322 U.S. at 598. The police
used no particularly coercive or heavy-handed interview
techniques, such as making Hardaway strip and wear
jail clothes or handcuffs, questioning him for lengthy
periods without a break, misrepresenting evidence, or
showing graphic pictures of the murder scene. See Woods
v. Clusen, 794 F.2d 293, 296 (7th Cir. 1986) (granting
writ on the basis of evidence of such mistreatment); Riley,
653 F.2d at 1162-63 (denying writ where defendant was
handcuffed and given jail clothes but there was no evi-
dence of mistreatment and interview only lasted four
hours). Instead, the officers merely asked Hardaway a few
questions about his whereabouts and truthfully con-
fronted him with the statements of two witnesses whose
versions of events contradicted his own. We cannot find
that the state court’s determination that this was not
unduly coercive behavior on the part of the police was
unreasonable, even when dealing with a 14-year-old.
One could still argue that leaving a juvenile alone in an
interrogation room for eight hours creates enough psycho-
logical pressure to render the confession involuntary.
Obviously, adolescents are less mature than adults and
perhaps such a time lapse, which we would expect an
adult to weather, would instead render involuntary the
confession of a child, especially one deprived of any adult
assistance.
No. 01-3450 15
If we were a state appellate court, we might well find
that on balance the psychological tension caused by leav-
ing a boy of 14 alone in an interview room, hungry,
scared, and tired, was enough to exclude the confession.
But we may set aside the contrary findings of the Illinois
trial and appellate courts only if their determination
was unreasonable. Williams, 529 U.S. at 411. As the state
courts pointed out, there are arguments that pass the
lenient test of “reasonableness” in favor of finding the con-
fession voluntary.
First, Hardaway was not intimidated, abused, or physi-
cally coerced in any way. A photograph taken at the time
of the confession substantiates this fact. Hardaway was
not psychologically tricked into confessing by officers but
only confronted with truthful contradictory evidence.
Second, Hardaway had extensive prior history with parts
of the criminal justice system. Prior to the Sandifer mur-
der Hardaway had been arrested 19 times between 1992
and 1994 and charged with four counts of battery, three
counts of criminal trespass to vehicle, two counts of ag-
gravated battery, two counts of robbery, criminal damage
to property, attempted criminal sexual assault, disorderly
conduct, assault, possession of a controlled substance, un-
authorized use of a weapon, possession of marijuana, and
delivery of a controlled substance. Three of the complaints
were adjusted in complaint screening, and seven were sta-
tion adjustments. Hardaway had been placed on juve-
nile supervision, but had violated that supervision. Seven
times Hardaway had appeared in juvenile court with
appointed counsel. As the state courts recognized, past
brushes with the law weigh against the normal presump-
tion that youths are specially sensitive to coercion. Wilder-
ness, 160 F.3d at 1175; Johnson, 28 F.3d at 645.
It is true that there is no evidence that Hardaway had
ever received Miranda warnings at any of these 19 ar-
16 No. 01-3450
rests. However, based on the seriousness of the charges
in many of those counts, we cannot conclude that the
circuit court was unreasonable in weighing Hardaway’s
frequent police encounters and general familiarity with
the criminal justice system in favor of the confession’s
voluntary nature.
Finally, Hardaway appeared to law enforcement offi-
cials to understand his rights when they were read to him.
At the beginning of his court-reported statement he
claimed to understand those rights and waived them. He
also explained his rights back to Harney in his own
words. To Hardaway, the right to silence meant “he didn’t
have to talk if he didn’t want to.” Hardaway also stated
that anything he told assistant state’s attorney Harney
she could tell a judge in a case against him. As for the
right to an attorney, he said that this meant that he
could have a lawyer there when Harney questioned him
about the case, and he could have one even if he and his
family could not pay for one. This recitation indicates
that there was adequate support for the state court find-
ing that Hardaway did have at least a basic comprehen-
sion of his rights. As the trial judge noted, there is no
indication that Hardaway, whose test scores showed an
IQ of 95 and the educational performance of an average
sixth-grader, had mental incapacities or other infirmities
that would make him incapable of understanding his
rights. See Rice v. Cooper, 148 F.3d 747 (7th Cir. 1998)
(upholding waiver of rights by mentally retarded, illiterate
16-year-old).
There is no doubt that Hardaway’s youth, the lack of a
friendly adult, and the duration of his interrogation are
strong factors militating against the voluntariness of his
confession; indeed, it seems to us that on balance the
confession of a 14-year-old obtained in those circum-
stances may be inherently involuntary. Nevertheless, the
weighing of factors under the totality of circumstances
No. 01-3450 17
test is a subject on which reasonable minds could differ.
Here the trial court stated that it weighed all relevant
factors, and after doing so it concluded that the lack of
any apparent coercion by the police, Hardaway’s recita-
tion of his rights, his mental capacity, and his past ex-
perience with the criminal justice system on balance
rendered his confession voluntary and admissible. Even
assuming that the weighing of factors by the Illinois
state courts in this case was incorrect, the balance is
close enough that, in the final analysis, it is not unrea-
sonable. Williams, 529 U.S. at 411. Keeping in mind our
deferential standards of review under AEDPA, we are
compelled to defer to the findings and the conclusion of
the state courts.
III
Because the determination of the Illinois courts that
Hardaway’s confession was voluntary under the totality
of the circumstances was not an unreasonable applica-
tion of clearly established federal law, the district court
should not have granted the writ of habeas corpus. For the
foregoing reasons, the judgment of the district court is
REVERSED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-11-02