Doody v. Schriro

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNATHAN ANDREW DOODY, 
Petitioner-Appellant,
No. 06-17161
v.
DORA B. SCHRIRO; MEGAN SAVAGE;  D.C. No.
CV-98-00528-EHC
ATTORNEY GENERAL OF THE
OPINION
STATE OF ARIZONA,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted
June 23, 2009—Seattle, Washington
Filed February 25, 2010
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Betty B. Fletcher, Harry Pregerson, Stephen Reinhardt,
Pamela Ann Rymer, Andrew J. Kleinfeld, Sidney R. Thomas,
Kim McLane Wardlaw, Richard C. Tallman, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Rawlinson;
Concurrence by Chief Judge Kozinski;
Dissent by Judge Tallman
2949
DOODY v. SCHRIRO 2953
COUNSEL
Victoria B. Eiger (argued) and Nathan Z. Dershowitz, Der-
showitz, Eiger & Adelson, P.C., New York, New York, for
petitioner-appellant Johnathan Doody.
Terry Goddard, Attorney General, Kent Cattani, Chief Coun-
sel, and Joseph T. Maziarz (argued), Assistant Attorney Gen-
eral, Criminal Appeals/Capital Litigation Section, Phoenix,
Arizona, for respondents-appellees Dora B. Schriro, and
Megan Savage.
2954 DOODY v. SCHRIRO
OPINION
RAWLINSON, Circuit Judge:
This case emerged from a horrendous crime — the murder
of nine individuals, including six monks, inside a Buddhist
temple. The ensuing investigation ensnared Petitioner Johna-
than Doody, a seventeen-year old high school student.
Although Doody eventually confessed to participating in the
nine murders, he now challenges his confession, asserting that
the Miranda1 advisements he was given were inadequate and
that his confession was involuntary. We agree on both counts.
Specifically, we conclude that the advisement provided to
Doody, which consumed twelve pages of transcript and com-
pletely obfuscated the core precepts of Miranda, was inade-
quate. We also hold that nearly thirteen hours of relentless
overnight questioning of a sleep-deprived teenager by a tag
team of officers overbore the will of that teen, rendering his
confession involuntary.
I. BACKGROUND
“On the morning of August 10, 1991, members of the Wat
Promkunaram Buddhist Temple discovered nine bodies inside
the temple (the temple murders). The victims, including six
Buddhist monks, lay face down in a circle, each shot in the
head.” State v. Doody, 930 P.2d 440, 443 (Ariz. Ct. App.
1996). Temple living quarters were ransacked, and personal
property was missing. See id.
Approximately one month after the temple murders, Phoe-
nix detectives received an anonymous tip implicating four
men from Tucson (the Tucson Four). During interrogations,
1
Miranda v. Arizona, 384 U.S. 436, 444 (1966), requires that, prior to
questioning, a suspect be apprised of his constitutional rights to remain
silent and to consult an attorney.
DOODY v. SCHRIRO 2955
the four suspects made inculpatory statements, resulting in
murder charges against them.2 See id.
The police identified the murder weapon as a Marlin Model
60 .22 caliber rifle (Marlin rifle). See id. Investigators
received a report from Luke Air Force Base that a military
policeman had discovered a Marlin rifle while searching a
vehicle in an unrelated incident. See id. The rifle was recov-
ered from its owner, Rolando Caratachea (Caratachea), and
identified as the temple murder weapon. See id. When con-
fronted, Caratachea denied involvement in the temple mur-
ders. He steered the investigators to Doody and another
minor, Alessandro Garcia (Garcia), whom he reported had
borrowed the rifle shortly before the murders. See id.
Police officers approached Doody on October 25, 1991, at
a high school football game, where Doody was participating
in a flag ceremony as a member of the high school Reserve
Officers Training Corps (ROTC). Doody voluntarily accom-
panied the police officers to the station for questioning.
Doody’s interrogation began at 9:25 p.m. and concluded at
10:00 a.m. the next day. See id. at 444. Prior to commencing
the interrogation, Detective Riley purported to advise Doody
of his constitutional rights as required by Miranda. His recita-
tion of Miranda’s basic warnings consumes twelve pages of
transcript, largely a byproduct of the detective’s continuous
usage of qualifying language. The Miranda form designed to
be used when questioning juvenile suspects contained the fol-
lowing uncomplicated advisements:
1. You have the right to remain silent. (This means
that you do not have to talk to me or answer any
questions about this offense. You can be quiet if you
wish.) . . .
2
All charges against the Tucson Four were subsequently dismissed. The
State has never disputed that the Tucson Four’s confessions were false.
2956 DOODY v. SCHRIRO
2. Anything you say can and will be used against
you in a court of law. (This means that anything
you tell me, I can use later against you in court
. . .) . . .
3. You have the right to have an attorney present
prior to and during questioning. (This means, if
you want one, you are allowed to have a lawyer here
before and during my questions to you . . .) . . .
4. If you cannot afford an attorney, you have the
right to have one appointed for you prior to ques-
tioning. (This means if you do not have the money
to get a lawyer, if you wish, one will be given to you
free of charge before you are questioned.) . . .
Juvenile Miranda Warnings Form (October 25, 1991). What
began as the reading of a single-page Miranda form morphed
into a twelve-page exposition that negated the intended effect
of the Miranda warning.
Detective Riley began by informing Doody that the warn-
ings were merely a formality that Doody should not take out
of context:
Ah, what I’d like to do first though Jonathan since
we’re in kind of a formal setting and things like that
and because DAVE [Munley’s] a police officer and
I’m a police officer and things like that ah some-
times some of the questions that we get into are, are
a little bit sensitive and ah things like that. Ah, and
what I’d like to do is before we, we go into that is
ah, read something to you ah, and so that you under-
stand some of the protections and things that ah, that
you have. It’s not meant to scare you or anything
like that, ah, don’t, ah, don’t take it out of context,
okay.
DOODY v. SCHRIRO 2957
...
Ah, I’m sure you’ve heard this thing and you’ve
heard it said on t.v. and things like that and it’s not
quite like t.v. portrays it ah, it’s a little more, little
less technical and a little less heavy if you want to
put it ah that way . . . What, what, it’s called is a
Miranda warning okay. Have you heard that before?
Doody: No.
They call it Rights on t.v., okay. What, what that is
and basically all that is Jonathan is, it’s not necessar-
ily something that is, like on t.v. where they portray
it when somebody’s ah guilty of doing something,
ah, we read these things to people on somewhat of
a regular basis, whether they’re responsible for doing
something or not, okay. So I don’t want you to feel
that because I’m reading this to you that we neces-
sarily [sic] that you’re responsible for anything, it’s
for your benefit, it’s for your protection and for our’s
[sic] as well, okay?
Doody Interrogation Transcript, Tape 1, pp. 2-4 (emphases
added).
Detective Riley then informed Doody that he was reading
the Miranda warnings verbatim from a form. See id. at p. 8.
However, the detective deviated significantly from the form,
while informing Doody of his right to counsel. He stated:
Okay, and the next one states that you have the right
to have an attorney present prior to and during ques-
tioning, and what that means [sic] that if you want
one, you’re allowed to have a lawyer here before and
during you know my questions to you, okay. And
then an attorney is a lawyer who will speak for you
and help you concerning the crime or any kind of
2958 DOODY v. SCHRIRO
offense that ah we might think that you or somebody
else is involved in, if you were involved in it, okay.
Again, it [sic] not necessarily mean that you are
involved, but if you were, then that’s what that
would apply to okay.
Id. at p. 10.
The interrogation commenced with casual questions from
both Detective Riley and Detective Munley about Doody’s
roommates and friends, including whether any of them owned
guns. Doody volunteered that his friend Caratachea owned a
gun, but denied that he ever borrowed or shot the gun. The
two detectives then switched the focus of the questions to the
temple murders, asking Doody to detail his whereabouts at the
time of the murders and to describe how he became aware of
the crime. Doody responded that on the night of the murders,
he went to a movie with a friend and returned home. The two
officers followed up by asking additional questions about the
temple, Doody’s prior visits to the temple and the victims.
Approximately one hour into the interrogation, Detective
Riley paused to lecture Doody about the importance of telling
the truth. He also asked a pointed question: whether Doody or
anyone Doody knew had ever borrowed Caratachea’s rifle.
Doody denied that he had, but stated that Garcia might have
done so. At that point, Detective Riley apprised Doody that
there were some things about the gun that he knew Doody
was aware of, and he urged Doody to come clean.
Detective Riley again asked Doody about his whereabouts
when the murders occurred and whether he knew anything
about the murders other than what was reported in the news.
When Doody once more denied any knowledge of the mur-
ders, Detective Riley repeated his warning about the impor-
tance of Doody telling all, and he informed Doody that the
detectives knew Doody was lying when he denied borrowing
DOODY v. SCHRIRO 2959
Caratachea’s rifle. In response, Doody reiterated that he never
borrowed the rifle, but Garcia might have.
Following Doody’s repeated negative response to the ques-
tion of borrowing Caratachea’s rifle, both detectives pro-
ceeded to lecture Doody on the importance of his telling the
truth. In the midst of the lecture, the two detectives confronted
Doody with their “knowledge” that Doody and at least one
other person borrowed the rifle. They demanded information
confirming their knowledge, telling Doody that “its [sic] so
important for you, for you to tell us. I mean you have to tell
us. You have to.” Doody Interrogation Transcript, Tape 3, p.
27 (emphasis added).
Almost immediately after the two detectives told Doody he
had to tell them about borrowing the rifle, Doody obliged. He
told the two detectives that he and Garcia borrowed the rifle
well before the temple murders. This admission prompted
several more sternly couched lectures on the importance of
telling the truth, and the detectives’ knowledge that Doody
was lying. The detectives also increased the pressure on
Doody by informing him that Caratachea’s rifle was the mur-
der weapon. Nevertheless, Doody maintained that he returned
the rifle to Caratachea prior to the murders. He continued to
deny knowledge of, or involvement in, the murders in the face
of repeated questions and accusations that he was withholding
information from the detectives.
In the middle of the night, Doody became virtually non-
responsive to the detectives’ questioning, even though a third
detective, Detective Sinsabaugh, who had interviewed Doody
in September, joined the tag team. From that point, the pres-
sure intensified. Detective Riley began with:
Why if you didn’t kill anybody, then what is what is
keeping you from making people understandable
[sic] believe that. ‘Cause if you didn’t kill anybody,
doing what you’re doing right now isn’t going to
2960 DOODY v. SCHRIRO
convince anybody . . . They’re gonna say and this is
only speaking it out common sense fashion how peo-
ple normally perceive things, is it if you didn’t kill
anybody why is he lying, why won’t he tell what
happened, there is [sic] got to be a reason for that;
and the reason that most people would come to is
that you probably kill [sic] them and it is won’t
admit it. So we can get pass [sic] that point and deal
with the fact that he didn’t kill anybody, but this is
why your problem in coming across with what he
knew and reasons were this and this and hey! I think
there [sic] a probably pretty good reasons [sic] other-
wise you wouldn’t have such a problem Jonathan,
but help us understand that, and by understanding it
you’re going to help yourself out tremendously
‘cause we have to know. Com’mon!
Doody Interrogation Transcript, Tape # 8, pp. 1-2. Doody
responded, “I don’t know anything else.” Id. at p. 2.
Detective Sinsabaugh chimed in: “You know me don’t you
Jonathan? How’ya doing my friend?” Id. at p. 6. The detec-
tive instructed an unresponsive Doody:
Remember we talked about honor. I need your help
on this one. I know what’s up. I need you to help on
this one, okay? You got a duty to help us Jonathan;
I know exactly what went down, my man, and you
got a duty to help us and we can work this thing out
together and I’m coming to you straight up Jonathan.
I’m serious. These guys [the other two detectives]
are trying to give you an opportunity Jonathan for
you to help us to be on our team and that’s why
they’re spending this time with you. Just like that
night I talked to you, it’s no game now Jonathan. I
know you though Jonathan, I know . . . your family.
I know where you have been raised, and I don’t
think Jonathan Doody is a cold blooded killer. These
DOODY v. SCHRIRO 2961
guys were cowards Jonathan. You got mixed up with
some dumb punks, and you gotta help us on this Jon-
athan. You gotta help us on this ‘cause it’s no game
now. I mean that you gotta help us on this. This is
not a game; I’m not playing with you Jonathan. I
know your family and everything. Please help me on
this Jonathan. We can we can talk and we’d see how
we can ever work this thing out, but you gotta be
straight up front with me. If if you lie to us Jonathan,
then we’re not gonna be able to believe the truth. If
you lie to us, I’m not gonna be able to believe
whether or not you are [sic] killer and I don’t believe
that Jonathan and that’s why I took the time to come
in and talk to you, ‘cause I care about you man. Let
it out, Jonathan. Now is the time let it out. Let it out,
Jonathan. Tell’s [sic] us what’s up; take some pride
in yourself we’ll, we’ll work it out Jonathan, but it’s
not gonna help leaving it in. I need to know your
part; we already know what went down Jonathan.
Help me on this one.
Id. at pp. 6-7 (emphases added).
Besides reiterating that he didn’t do anything, Doody was
non-responsive. The three detectives continued in tandem:
Detective Munley: Tell us what happened. We gotta
hear it from you. Get it all cleared up Jonathan, you
can do it. It has to come out Jonathan.
Detective Sinsabaugh: Jonathan now is the time.
Detective Munley: Go ahead Jonathan please.
You’re not afraid to take stands, just get it out, just
get it out . . .
Detective Munley: Do it Jonathan; I can help you.
Let it out Jonathan.
2962 DOODY v. SCHRIRO
Detective Sinsabaugh: Trust me on this one. Jona-
than. Whose plan was it Jonathan? Tell me Jonathan,
whose plan was it? I’ll work with you on it. Go
ahead, Jonathan, go ahead. Help us on this.
Detective Riley: Jon you can do it. Whose idea was
it?
Detective Sinsabaugh: Jonathan let it out, let it out
take a deep breath let it out now. Let it out and tell
us what happened.
...
Now is the time, let it out. Get it out of you, it’s a
new beginning for you.
...
Jon, this is bull shit. Get it out Jonathan ‘cause then
I’m not gonna believe you when you do tell us we,
we know what’s up. Now let it out now, and we’ll
work together on it.
Detective Munley: Jonathan, who are we talking
about here? You gotta take this position now. You
better take a hold of this now.
Detective Riley: This is your time, Jon. This is your
opportunity get [sic] it out.
Detective Sinsabaugh: Jonathan, I know you’re
involved. I don’t wanna go out that door; I don’t
wanna believe other one’s, other people’s story. I
want it from you first hand. Jonathan, it’s time. I’m
serious, it’s time.
...
DOODY v. SCHRIRO 2963
Take a stand. Be a man . . .
Detective Riley: You have to Jon . . .
...
Detective Sinsabaugh: Now come clean with me
Jonathan; come clean.
...
Detective Munley: Rollie was involved, wasn’t he?
Detective Riley: Com’mon Jonathan, it’s not that
difficult. Either he was or he wasn’t. Was he? Was
he or wasn’t he involved? Jonathan was he?
Doody: I don’t know.
Detective Riley: Yes, you do know. Was he?
Detective Sinsabaugh: Jonathan, I’m going out this
room. I’m gonna talk to other people. I thought for
surely [sic] I could come to you; you’re not thinking
in your interest Jonathan. How we talked about the
honor; I don’t see any of that honor my man.
Detective Riley: Try, you can do it. Gotta get it, you
gotta release it Jonathan. It’s not gonna go away.
Man you gotta get it out. Just go ahead and say it.
It’s all in [sic] the tip of your tongue. Just let it out
Jon . . . [W]as Rollie involved? Jonathan it’s not that
hard. Either he was or wasn’t. Com’mon, do it. Do
it now. Either he was or he wasn’t. Was he involved?
Yes or no? Com’mon, com’mon! . . .
Detective Munley: Get it out . . .
2964 DOODY v. SCHRIRO
Detective Sinsabaugh: I’m with you. I’m with you.
You gotta help me on this one. We gotta make this
right Jonathan. This’s no game Jonathan; I’m being
honest with you.
Detective Munley: He was involved, wasn’t he Jon?
Detective Sinsabaugh: It’s your side of the story.
Detective Munley: He was, wasn’t he.
Detective Sinsabaugh: Com’mon Jonathan.
Detective Munley: Jonathan, look at me; he was,
wasn’t he? Go ahead Jonathan.
...
Detective Sinsabaugh: You were involved Jonathan.
You were involved.
Detective Munley: We gotta know the extent of your
involvement. We gotta have your version Jon.
Detective Sinsabaugh: Man, you gotta get it out.
Detective Munley: Tell it, Jon.
Detective Riley: Jonathan can you honestly sit there
and tell myself and Dave and Rick right now that
you were not at that temple.
Detective Sinsabaugh: No, ‘cause Jonathan Doody
doesn’t lie.
Detective Munley: Jonathan, can you?
Detective Riley: Com’mon this is not that hard. You
know what we’ve talked about throughout this whole
DOODY v. SCHRIRO 2965
conversation. If you’re there, we can deal with that;
but we gotta know, we gotta hear it from you. You
have to tell us. Yes or no? Were you or weren’t you?
Yes or no? Jonathan, com’mon. Yes or no? Yes or
no? Yes or no? Yes or no? It’s real simple. Were you
or weren’t you. Just tell me, yes or no. Com’mon yes
or no, it’s real simple.
...
Detective Sinsabaugh: Join the team. Let’s work this
thing out together. I’m not gonna tell you, you can’t
Jonathan. Let’s straighten this shit up.
...
Doody: (Murmur)
...
Detective Sinsabaugh: Jonathan do it.
Detective Riley: We have to know; you have to let
us know. If you don’t, let us know know [sic] body
else is gonna do that for you. Either you tell us you
were or weren’t, it’s really simple. I know it’s a
struggle right now, but you have to let us know that.
Whether or not you were there. Simply yes or no.
What is it, which one is it? Com’mon, take control
right now.
Detective Sinsabaugh: Answer Jonathan, answer.
Detective Munley: You can do it Jon.
...
Detective Munley: Jon, it’s not the end of the world.
It’s not the end of the world.
2966 DOODY v. SCHRIRO
...
Jonathan you can do it.
Detective Riley: Please! Jonathan, com’mon. You
can deal with this; you can take control of this situa-
tion. The way to start with that is to do this now by
telling us whether or not you were there. Were you
or not there? Jonathan Please tell us now. Let us help
you . . .
Detective Munley: Get it out . . .
Detective Riley: Give us the opportunity.
Detective Munley: Get it out. Go ahead.
Detective Riley: Grab a hold of this opportunity. Let
us help you. Like Rick’s been telling you, trust us.
Detective Sinsabaugh: Jonathan, Jonathan, Jonathan
look at me. This is flat out bull shit man. What what
what what’d, you been brought up better than this.
What the hell does this stand for, Okay? Are you
gonna cover for bunch [sic] of cowards. I’m trying
to convince these people Jonathan that you didn’t
kill anybody. You got something in here, and you
you’re sitting here playing a game and I’m not gonna
put up with it. You’re gonna sit there and cover for
bunch [sic] of cowards. I think Jonathan, I’d come to
you straight up and I’m gonna give [sic] chance to
answer and I want you to come clear with this. Don’t
cover for these guys. They’re cowards, Jonathan.
Tell me.
Doody: I can’t.
Detective Sinsabaugh: Why? I’ll work with you,
why? Why Jonathan? Why? Talk to, I’d talk to you
DOODY v. SCHRIRO 2967
the other night Jonathan; we can talk. Me and you
can talk Jonathan . . . don’t freeze up on me man.
You freeze up on me like this, I can’t talk to you.
Talk to me. Why can’t you and we’ll work it out.
Just sit down and discuss this. . . . Jonathan, take
charge man. Your [sic] soldier man, you don’t, you
you don’t you can say what’s on your mind and tell
me Jonathan. Tell me. Tell me so I can work this out
with you. Go ahead my man, tell me. Tell me, trust
me my man. Trust me. Trust me so we can work
[sic] out; I need your help Jonathan. How did you
get involved in it and talk. How did you get involved
in it? We’ll work it out Jonathan, we’ll work it out.
I’m worried about your family, too. We’ll work it
out. You need to help me Jonathan. Jonathan, Jona-
than don’t. You told me you can’t, now why? Jon
no, Jonathan tell me. Why? Let’s work it out
together. Jonathan look at me my man, trust me on
this. Let’s work this thing. Why? If you wanna say
it Jonathan, why? Why? I I care about you Jonathan;
you’re [sic] family wanna know why . . .
Id. at pp. 10-19.
Between 3:15 a.m. and 3:56 a.m., after making a brief com-
ment about there not being a threat to his family, Doody Inter-
rogation, Tape 9, p. 1, Doody again became silent. The
detectives continued without any response from Doody:
Detective Sinsabaugh: Jonathan, who did they
threaten [sic] let it out? I know what’s up Jonathan.
Tell me about it lets [sic] work this out. Jonathan I
need your help to prove that your [sic] not a killer
Jonathan. You went there it went to shit Jonathan it
wasn’t your idea. You just got messed [sic] with the
wrong guys, Jonathan look at me. Don’t sst [sic],
what’s the problem? Jonathan tell me. Let it out,
2968 DOODY v. SCHRIRO
who, you said not me who? Who Jonathan? Jonathan
be a man about this. Tell me.
Detective Riley: Who’s [sic] ideal [sic] was it Jona-
than?
Detective Sinsabaugh: Tell him Jonathan. Tell him
Jonathan, who’s [sic] ideal [sic] it was. Let’s get this
out, there you go . . .
Detective Sinsabaugh: Ideal [sic] was it?
Detective Munley: Go ahead Jonathan. It’s easy,
who’s [sic] ideal [sic]? Let it out Jonathan. Go
ahead.
Detective Sinsabaugh: Jon, Jon, Jon trust me on this,
Jonathan. It’s the only way we can work it out is if
you’re up front Jonathan. Now I talked to you
tonight, the other time we talked you you you intelli-
gent [sic] help us on this talk to us.
Detective Munley: Who’s [sic] idea was it Jonathan?
Detective Sinsabaugh: Jonathan I’m gonna have to
leave the room are you gonna help me on this? Are
you gonna trust me on this? You can’t trust those
guys. You can trust me now tell me Jonathan. Jona-
than you’re wasting time, now tell me. You want to
tell us, so let’s just tell it now.
Detective Munley: Tell Jonathan.
Detective Sinsabaugh: Jonathan, Jonathan who’s
[sic] ideal [sic] was it? Jonathan you just said it,
who’s [sic] ideal [sic] was it?
Detective Munley: OK Jonathan.
DOODY v. SCHRIRO 2969
Detective Sinsabaugh: You’re gonna cover for a cold
blooded killer?
Detective Munley: Jon go ahead and let it out. Go
ahead Jon.
Detective Sinsabaugh: Jon Jon Jon Jon are you
gonna cover for a cold blooded killer, now let it out.
Detective Munley: Go ahead Jon. Get it out Jon.
Were you there? Jon.
Detective Sinsabaugh: Jon Jon tell tell me so I know
what we’re up against. Why are you scared to tell
us? Huh, Jon Jon you got to answer me why are you
scared to tell us, answer me. No Jon why are you
scared to tell us? I’m not gonna let you do this to
yourself, why are you scared to tell us? No, Jon
you’re gonna answer me, why are you scared to tell
us? I’m concerned about ya and I’m I’m gonna stay
here until I get an answer, why are you scared to tell,
let me help you on this Jon. Jon, why are you scared
to tell us? Huh? Jon, Jon answer me. Why are you
scared to tell us, I’m not gonna let you do this. Now
you you start talking to me. Tell us Jon. Jon Jonathan
tell us.
Detective Munley: Let it go. You just said it.
Detective Sinsabaugh: Trust me on this [Jonathan].
This is the only way.
Detective Munley: Go ahead Jon. Get it out Jon, just
get it over with it has to come out. It has to come
out, go ahead. Go ahead Jon.
Detective Sinsabaugh: Jon look what you’re holding
inside you want to tell us just tell us. Jon, Jon would
2970 DOODY v. SCHRIRO
you tell me? Look at me Jon, Jon don’t look away,
look at me Jon you’re a soldier tell me what’s up.
Jon no no no tell me Jon talk to me Jon. Jon no no
this guy it’s not you’re not gonna cut it that way
man, you’re gonna be a man about it. You’re gonna
talk to me Jon.
Detective Riley: Who are you afraid of Jon?
Detective Sinsabaugh: You you gonna get this out in
the open now Jon that isn’t going to buy it, you’re
you’re you’re an ROTC you’re a soldier now start
talking to me Jon don’t sit there like that talk to me.
Jon you remember what’s my name? What’s my
name? What’s my name Jon? What is my name?
What is my name Jon?
Detective Riley: Don’t you remember his name?
Detective Sinsabaugh: Do you remember me talking
to you at school? I called you at school, your coun-
selor and you called me? Do you remember yes or
no?
Doody: Yes.
Detective Sinsabaugh: OK, why is that so hard?
Yeah I talked to him a couple of months maybe. Jon
Jon do you want to talk or not?
Doody: I’ll pull up a chair.
Detective Munley: Just get it out.
Detective Sinsabaugh: Jon, excuse me. What’s the
deal are you gonna talk to me or not? Who am I Jon?
What’s my name? Well talk, what is my name Jon?
DOODY v. SCHRIRO 2971
You can’t remember it? You remember me talking
to you?
Doody: Yes.
Detective Sinsabaugh: OK speak up OK we’re men
now. Could you remember me talking to you?
Doody: Yes.
Detective Sinsabaugh: OK speak up, Jon. OK I’m
talking you [sic] straight up like a man, do you
remember me talking to ya?
Doody: Yes.
Detective Sinsabaugh: OK I, you need to speak up
through [sic] when you’re talking to me. What is my
name? You you remember my name? Yes or no, do
you remember my name?
Doody: Yeah.
Detective Sinsabaugh: OK, what’s my name?
Doody: Richard Sinsabaugh.
Detective Sinsabaugh: Well why is that so hard? I’m
I’m here for ya, you got to talk, why why you act
[sic] that you don’t talk like that? Tell us these guys
are trying to help you now what’s up? Jonathan,
that’s it were [sic] talking now. Now, I know you’re
involved Jonathan now now you gonna help me on
this thing. So what’s the deal, what don’t don’t start
this stuff talk to me OK, lets [sic] talk about the
problem what problem are we having right now?
What’s the problem? You say you’re afraid of some-
thing, what are you afraid of?
2972 DOODY v. SCHRIRO
Doody: I’m not afraid of anybody.
Detective Sinsabaugh: OK what’s the problem talk
to me that’s what we need to talk about what’s the
problem? You’re afraid of the family? Right?
Doody: No.
Detective Sinsabaugh: What? Talk to me that’s what
I need, so I can discuss it with ya what? Then what?
Jon tell me, what?
Doody: I’m afraid for somebody.
...
Detective Sinsabaugh: Oh, are you afraid Vickie find
[sic] out about you? What are you afraid of? I’m not
a mind reader Jonathan you got to tell me, tell me.
It’s not that hard, tell me Jonathan seriously, tell me.
OK? I talked to you Jonathan my God you’re an
intelligent guy, what’s the deal tell me, you’re afraid
for Vickie what what are you afraid of Vickie for?
What are you afraid of of for Vickie? Tell us so we
can get over this hurdle this Vickie. Hurdle . . .
what’s the problem? Jon Jonathan tell me what’s the
problem? Did you kill anyone there Jonathan? Look
me in the eye yes or no, did you kill anyone there?
Doody: No.
Detective Sinsabaugh: I can’t hear you Jonathan, did
you kill anyone there takes [sic] a stand.
Doody: No.
Detective Sinsabaugh: OK, why is it that [sic] so
hard to say is it because you might of, I don’t think
DOODY v. SCHRIRO 2973
you killed anyone Jonathan, but I know you were
there. Jonathan I’m gonna ask you this and don’t
give me information any doubts [sic] on it, cause I
don’t think you killed anyone, did you kill anyone at
the Temple?
Doody: No.
Detective Sinsabaugh: Why is that hard to answer?
You were there though Jonathan, right? Right? Jona-
than, were you at the Temple? Jonathan, were, I’m
asking you flat out, were you involved? Jonathan
were you involved, don’t lie to me yes or no? Tell
me Jonathan, were you involved, I need to know so
we can get over this and work on it. Were you
involved? Tell me Jonathan. You were involved Jon-
athan, tell me. I know that but I need to know if you
killed anybody, you said you didn’t kill well how do
I know if you’re lying to me about this? Were you
involved? Jonathan were you involved? Answer me,
answer me Jonathan. Jonathan answer me. Answer
me. What what’s the problem answer me Jonathan
what what are we going through all this, we want to
work things out, what’s the difference, we all [sic]
ready know what’s up Jonathan you’re here, ya
know we took you out of ROTC, this isn’t a game
OK you need you [sic] to help us out on this. And
why you doing this, this doesn’t look like a guy who
wants to help us out, what’s the problem? Were you
involved?
Interrogation Transcript, Tape 9, pp. 1-8. Doody finally
responded, “Yes.” Id. at 8.
Over the course of several more hours of interrogation,
Doody gave the detectives the “confession” they sought.
Doody informed the detectives that Caratachea and Garcia
approached him with a plan to conduct a war game with the
2974 DOODY v. SCHRIRO
goal of surrounding the temple without triggering the security
system. Doody went to the temple with Caratachea, Garcia,
and two others, George Gonzalez (Gonzalez) and his friend.
Doody explained that he had no intention of entering the tem-
ple but, once past the security sensors, he followed the others
inside. According to Doody, Caratachea, Garcia, Gonzalez,
and the other participant ransacked the temple’s living quar-
ters and gathered the victims into the main room. After one
of the monks recognized Gonzalez, Doody was ordered to go
outside and confirm that the walls were sound-proof. Doody
maintained that the shootings occurred while he was outside
and that he did not know who fired the shots. Doody, 930
P.2d at 444.
On the same night that Doody was interrogated, Garcia was
also questioned. Garcia identified Doody as the mastermind
of the plan to rob the temple. Garcia’s version of events was
that once they were inside the temple, Doody was determined
to leave no witnesses. According to Garcia, he attempted to
persuade Doody not to shoot the victims but was unsuccess-
ful. Instead, Doody shot each victim in the head with a rifle
Doody borrowed from Caratachea. Garcia stated that he and
Doody were the only participants in the murders.
Investigators subsequently searched Garcia’s home and dis-
covered several items taken from the temple. They also recov-
ered a shotgun that matched shells from the crime scene. The
two confessions and the evidence collected at Garcia’s home
resulted in dismissal of all charges against the Tucson Four
from whom the police had previously obtained confessions.
Doody and Garcia were subsequently charged with the mur-
ders. See id.
Prior to trial, Doody and Garcia filed motions to suppress
their confessions. Id. At the suppression hearing, Detective
Riley described Doody as “very polite, attentive, and just
overall pleasant.” Suppression Hearing Transcript, October
27, 1992, pp. 68-69. Detective Riley described using “a stan-
DOODY v. SCHRIRO 2975
dard issue juvenile Miranda form issued by the office” to
inform Doody of his Miranda rights. Id. at 77-78. According
to Detective Riley, he went through the form with Doody,
who initialed the applicable areas of the form. Detective Riley
stated that Doody was “very attentive. [Doody] made eye con-
tact with [Detective Riley] as [he] spoke to [Doody] and,
again, was polite and courteous.” Id. at 81. Detective Riley
stated that Doody did not display any doubt while answering
the questions. He estimated that it took fifteen to twenty min-
utes to administer the Miranda warnings.
When asked if Doody appeared tired during the interroga-
tion, Detective Riley responded, “I’d have to say for the most
part no. [Doody] didn’t really display any real overt sign of
being fatigued or tired.” Id. at 89. Detective Riley testified
that he used a “[q]uiet and calm” voice when he questioned
Doody. Id. at 90.
Detective Riley confirmed that there were long periods dur-
ing the interview when Doody remained silent while Detec-
tive Riley kept asking questions. During these periods,
Doody’s “posture began to deteriorate. His attentiveness also
deteriorated. And his eye contact dropped to where he would
look at the ground for long periods of time. He would clinch
his beret in his hand.” Suppression Hearing Transcript, Octo-
ber 28, 1992, p. 35. Detective Riley agreed that certain peri-
ods could be described as an “impasse.” Id. at 37. Detective
Riley acknowledged that the transcripts reflected a four-page
speech in which he was trying to get Doody to provide addi-
tional information. After this “four-page . . . speech,” Doody
responded, “I don’t know anymore.” Id. at 43.
Following the suppression hearing, the trial court denied
both Garcia’s and Doody’s motions to suppress. Doody, 930
P.2d at 444. Garcia entered into a plea agreement, “pursuant
to which the state agreed not to pursue the death penalty and
Garcia agreed to testify against Doody.” Id. “In addition, Gar-
cia pled guilty to nine counts of first degree murder and one
2976 DOODY v. SCHRIRO
count of burglary in connection with the temple murders, as
well as one count of first degree murder in an unrelated homi-
cide (the Cameron murder).” Id.
At Doody’s trial, Garcia testified consistent with his state-
ments to the investigators. See id. Doody was not allowed to
cross-examine Garcia regarding the Cameron homicide or
other unrelated and uncharged offenses Garcia committed
with Caratachea, “including a series of burglaries and conspir-
acy to commit murder and armed robbery (the Cruz
offenses).” Id.
The jury ultimately convicted Doody on all counts. How-
ever, the verdict forms revealed that the jury premised
Doody’s first degree murder convictions on felony murder
rather than on premeditated murder. Id.
Doody appealed his convictions to the Arizona Court of
Appeals. Id. at 445. Addressing Doody’s confession, the
Court of Appeals observed that “the troublesome length of
Doody’s questioning does not, in itself, establish that the offi-
cers overcame Doody’s will to resist confessing.” Id. at 446
(citation omitted). The Court of Appeals opined:
Other factors indicate that, despite the length of the
interrogation, Doody confessed voluntarily.
Although the entire interrogation lasted approxi-
mately thirteen hours, Doody admitted he had bor-
rowed Caratachea’s rifle at the time of the temple
murders after approximately two and one-half hours
of questioning. Doody admitted he had participated
in the temple robbery after approximately six and
one-half hours of questioning, and his description of
the events at the temple spanned nearly two hours.
During the remaining hours, the detectives reviewed
Doody’s testimony and probed for a connection to
the Tucson Four.
DOODY v. SCHRIRO 2977
Id.
Additionally, the Court of Appeals concluded that
“[a]lthough Doody characterizes the tone of the interrogation
as coercive, the audio tapes reveal a courteous, almost plead-
ing style of questioning during most of the interview.” Id. The
Court of Appeals noted that “[e]ach of the officers involved
in the interrogation testified at the suppression hearing that
Doody remained alert and responsive throughout the interro-
gation and did not appear overtired or distraught. Our review
of the audio tapes confirms the officers’ testimony.” Id. The
Court of Appeals found that there was “no evidence that calls
into question the testimony that Doody remained alert and
responsive.” Id.
The Court of Appeals rejected Doody’s argument that the
police officers pressured him into a confession:
The officers used a variety of approaches in ques-
tioning Doody. They emphasized Doody’s experi-
ence in the high school honor guard and color guard
and appealed to his sense of honor as a soldier. At
impasses in the interview, the police captain entered
the interrogation room and likened himself to a com-
manding officer in the military, encouraging Doody
to trust and confide in him. The officers feigned
empathy with Doody’s situation and pleaded with
Doody to prove his innocence. The officers also
indicated to Doody that other suspects had impli-
cated him in the temple murders and that Doody’s
best defense would be to explain his version of the
events.
Id. at 447. The Court of Appeals held that “[t]he tactics,
though deceptive in part, were not so egregious as to over-
come Doody’s will and . . . the record contradicts Doody’s
claim on appeal that the method of interrogation induced him
to confess.” Id. at 447-48.
2978 DOODY v. SCHRIRO
The Arizona Court of Appeals also determined that the
police officers properly provided Doody with the requisite
“clear and understandable” Miranda warnings. Id. at 449.
Specifically, the Court of Appeals concluded that “[t]he offi-
cers read each warning from a standard juvenile form and pro-
vided additional explanations as appropriate.” Id.
Doody challenged the Arizona Court of Appeals decision
in a federal habeas petition, which was denied. However, the
district court granted a certificate of appealability concerning
the voluntariness of Doody’s confession and the adequacy of
the Miranda warnings given Doody.
In Doody v. Schriro, 548 F.3d 847 (9th Cir. 2008), a panel
of this court reversed the district court’s denial of Doody’s
habeas petition. Appellee Dora Schriro filed a petition for
rehearing en banc, which we granted. Doody v. Schriro, 566
F.3d 839 (9th Cir. 2009).
II. STANDARDS OF REVIEW
“We review the federal district court’s decision to deny
[Doody’s] habeas petition de novo.” DeWeaver v. Runnels,
556 F.3d 995, 997 (9th Cir. 2009) (citation omitted).
[B]ecause [Doody] filed his habeas petition after the
effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), we must deny
the petition unless the state court’s adjudication of
[Doody’s] claims resulted in a decision that was
either (1) contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United
States, or (2) based on an unreasonable determina-
tion of the facts in light of the evidence presented in
the State court proceeding.
Mendez v. Knowles, 556 F.3d 757, 767 (9th Cir. 2009) (cita-
tion omitted).
DOODY v. SCHRIRO 2979
Under AEDPA, “[t]he state court unreasonably applies
clearly established federal law if it either 1) correctly identi-
fies the governing rule but then applies it to a new set of facts
in a way that is objectively unreasonable, or 2) extends or
fails to extend a clearly established legal principle to a new
context in a way that is objectively unreasonable.” DeWeaver,
556 F.3d at 997 (citations and internal quotation marks omit-
ted). “Under applicable federal habeas law, state court find-
ings of fact are presumed correct unless rebutted by clear and
convincing evidence or unless based on an unreasonable evi-
dentiary foundation.” Gonzalez v. Pliler, 341 F.3d 897, 903
(9th Cir. 2003) (citations omitted). We review the decision of
the Arizona Court of Appeals as the last reasoned state court
decision on the matter. Holley v. Yarborough, 568 F.3d 1091,
1098 (9th Cir. 2009). We apply the unreasonable application
prong of AEDPA because the Arizona Court of Appeals iden-
tified the applicable governing rule for each issue.
III. DISCUSSION
A. Adequacy of the Miranda Warnings
[1] “[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interro-
gation of the defendant unless it demonstrates the use of pro-
cedural safeguards effective to secure the privilege against
self-incrimination.” Miranda, 384 U.S. at 444. “[T]o reduce
the risk of a coerced confession and to implement the Self-
Incrimination Clause, [the Supreme Court] in Miranda con-
cluded that the accused must be adequately and effectively
apprised of his rights and the exercise of those rights must be
fully honored[.]” Missouri v. Seibert, 542 U.S. 600, 608
(2004) (citations and internal quotation marks omitted). “Mi-
randa conditioned the admissibility at trial of any custodial
confession on warning a suspect of his rights: failure to give
the prescribed warnings and obtain a waiver of rights before
custodial questioning generally requires exclusion of any
statements obtained.” Id. (footnote reference omitted). “Mi-
2980 DOODY v. SCHRIRO
randa addressed interrogation practices likely to disable an
individual from making a free and rational choice about
speaking, and held that a suspect must be adequately and
effectively advised of the choice the Constitution guaran-
tees[.]” Id. at 611 (citations, alterations, and internal quotation
marks omitted). “The [relevant] inquiry is simply whether the
warnings reasonably convey to a suspect his rights as required
by Miranda.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989)
(citation, alterations, and internal quotation marks omitted).
In its analysis of the adequacy of the Miranda warnings,
the Arizona Court of Appeals concluded that “the officers
advised Doody of his Miranda rights in a clear and under-
standable manner and that Doody made a knowing and intelli-
gent waiver.” Doody, 930 P.2d at 449.
However, the record actually reflects that the detective’s
administering of the Miranda warnings was far from “clear
and understandable.” The Arizona Court of Appeals com-
pletely failed to consider the detective’s significant deviations
from the printed Miranda form and his repeated minimizing
of the warnings’ significance.
[2] During his administration of the warnings, Detective
Riley emphasized that Doody should not “take them out of
context,” and implied to a juvenile, who had never heard of
Miranda, that the warnings were just formalities. This misdi-
rection was coupled with repeated assurances that the detec-
tives did not necessarily suspect Doody of any wrongdoing.
Most significantly, in informing Doody of the right to coun-
sel, Detective Riley deviated from the form containing the
juvenile Miranda warnings, and ad libbed that Doody had the
right to counsel if Doody was involved in a crime. Indeed,
Detective Riley instructed Doody that he had the right to
counsel “if you were involved in it . . . but if you were, then
that’s what that would apply to[.]” The implication from this
improperly qualified, unclear, and confusing warning was that
Doody only had the right to counsel if he were involved in a
DOODY v. SCHRIRO 2981
crime. In such a circumstance, the invocation of one’s right to
counsel would be tantamount to admitting one’s involvement
in a crime. Overall, the fact that Detective Riley’s explanation
of a one-page Miranda warning form consumed twelve tran-
scribed pages of text is a testament to the confusion generated
by the detective’s obfuscation. When evaluated against clearly
established Supreme Court precedent, the Miranda warnings
were constitutionally deficient. At a minimum, Doody was
never clearly and reasonably informed that he had the right to
counsel. See Miranda, 384 U.S. at 471-72 (“[A]n individual
held for interrogation must be clearly informed that he has the
right to consult with a lawyer and to have the lawyer with him
during interrogation under the system for protecting the privi-
lege . . . As with the warnings of the right to remain silent and
that anything stated can be used in evidence against him, this
warning is an absolute prerequisite to interrogation . . . .”)
(emphasis added).
[3] The Miranda warnings provided to Doody were defec-
tive because Detective Riley downplayed the warnings’ sig-
nificance, deviated from an accurate reading of the Miranda
waiver form, and expressly misinformed Doody regarding his
right to counsel. In view of clear, convincing and contrary
evidence, the Arizona Court of Appeals’ conclusion that the
Miranda warnings were “clear and understandable” consti-
tuted both an unreasonable determination of the facts and an
unreasonable application of clearly established federal law.
See Siebert, 542 U.S. at 608.
Our colleagues in dissent chastise us for reaching these
conclusions, accusing the majority of “once again pay[ing]
mere lip service to AEDPA and then proceed[ing] as though
it did not exist.” See Dissenting Opinion, p. 3032. The dissent
would prefer that we simply parrot the findings made during
the state court proceedings and call it a day. However, if we
succumb to the temptation to abdicate our responsibility on
habeas review, we might as well get ourselves a big, fat rub-
ber stamp, pucker up, and kiss The Great Writ good-bye.
2982 DOODY v. SCHRIRO
As Justice Frankfurter recognized over sixty years ago:
A statement to be voluntary of course need not be
volunteered. But if it is the product of sustained pres-
sure by the police it does not issue from a free
choice. When a suspect speaks because he is over-
borne, it is immaterial whether he has been subjected
to a physical or a mental ordeal. Eventual yielding to
questioning under such circumstances is plainly the
product of the suction process of interrogation and
therefore the reverse of voluntary. We would have to
shut our minds to the plain significance of what here
transpired to deny that this was a calculated
endeavor to secure a confession through the pressure
of unrelenting interrogation. The very relentlessness
of such interrogation implies that it is better for the
prisoner to answer than to persist in the refusal of
disclosure which is his constitutional right . . .
Watts v. Indiana, 338 U.S. 49, 53-54 (1949).
The dissent strains mightily to salvage the Miranda warn-
ings given in this case. Yet the inquiry is a simple one:
“whether the warnings reasonably conveyed to a suspect his
rights as required by Miranda.” Eagan, 492 U.S. at 203 (cita-
tion, alterations and internal quotation marks omitted). The
Arizona Court of Appeals went even further, holding that the
warnings “were conveyed in a clear and understandable man-
ner.” Doody, 930 P.2d at 449. The dissent implicitly acknowl-
edges the error in the Arizona Court of Appeals’ holding
when it concedes that the warnings given were susceptible to
multiple interpretations. See Dissenting Opinion, pp. 3039-40
(offering at least three plausible interpretations of the officer’s
explanation of the right to counsel). It defies reason to con-
clude that a matter is both clear and ambiguous. Indeed, at
oral argument, even counsel for the State of Arizona was hard
pressed to explain what the officer’s explanation meant.
DOODY v. SCHRIRO 2983
Our colleagues in dissent cite Eagan and California v. Pry-
sock, 453 U.S. 355 (1981) in support of their argument that
the Arizona Court of Appeals reasonably applied Miranda.
See Dissenting Opinion, pp. 3035-36. Yet, as the dissent
admits, Eagan addressed “materially different facts from the
ones before us . . .” Id. at 3040. Eagan did not involve a juve-
nile defendant. The officers did not deviate from the printed
form with inaccurate and garbled elaborations. There was no
downplaying of the significance of the warnings. Most impor-
tantly, there was no implication that the right to counsel was
available only if the individual being questioned had commit-
ted a crime. See Eagan, 492 U.S. at 198-99.
Although the dissent is not as candid in its discussion of
Prysock, that case is similarly inapposite. In Prysock, unlike
in this case, the juvenile’s parents were present. See Prysock,
453 U.S. at 356. As in Eagan, the officer did not deviate from
the written Miranda warnings with inaccurate and garbled
elaborations. As in Eagan, there was no downplaying of the
significance of the Miranda warnings. As in Eagan, there was
no implication that the right to counsel was available only if
the individual being questioned had committed a crime. See
Prysock, 453 U.S. at 356-57. In sum, the best cases that can
be mustered in support of the dissent’s argument are readily
distinguishable.3
The fact remains that the transcript reveals the use of
Miranda warnings that were the very antithesis of clear. Com-
pounding the lack of clarity was Doody’s express statement
to the detective that he had never heard of Miranda warnings.
3
The dissent halfheartedly cites Cooper v. Dupnik, 963 F.2d 1220 (9th
Cir. 1992), overruled by Chavez v. Martinez, 538 U.S. 760 (2003), as a
favorable comparative to Detective Riley’s downplaying of the Miranda
warnings. See Dissenting Opinion, p. 3039. In Cooper, the officer admit-
ted that he wanted the subject to perceive the Miranda warnings as a joke.
See Cooper, 963 F.2d at 1228. However, the facts in Cooper are not that
different. The only thing missing in this case is an admission from the
detective.
2984 DOODY v. SCHRIRO
Rather than ensuring that Doody understood the warnings, the
detective plowed ahead, as reflected in the following excerpt
from the interrogation transcript:
Riley: Any questions?
Doody: No.
Riley: Okay. Okie dokie.
Doody: Oh yeah what’s this for? (apparently refer-
ring to the Miranda form)
Riley: Ah, okay I’ll, again, I’m gonna go in and, and
explain some things to you. Ah, in the next one
states that if you cannot afford an attorney, you’d
have the right to have one appointed for you . . .
Doody Interrogation Transcript, Tape 1, p. 10.
Despite Doody’s expressed lack of knowledge concerning
the Miranda warnings and Doody’s subsequently conveyed
confusion in the question “what’s this for?”, Detective Riley
ignored Doody’s query, and moved on to the next item on his
printed list.
Detective Riley injected additional confusion into the pro-
cess by informing Doody that the Miranda warnings were for
the mutual benefit of Doody and the officers. Not once, not
twice, but three times Detective Riley represented to Doody
that the warnings were mutually beneficial. See Doody Inter-
rogation Transcript, Tape 1, p. 2. “It’s only something for, for
your benefit and for our benefit, okay,” see also id. at p. 3
“[A]ll it is, is its [sic] something that’s ah for your benefit, as
well as four our’s [sic], okay,” id. at p. 4 “it’s for your benefit,
it’s for your protection and for our’s [sic] as well okay?” This
repeated misstatement of the purpose of Miranda warnings
carries a drastically different connotation than if the detective
DOODY v. SCHRIRO 2985
had given Doody a straight-forward explanation that the
warnings were given for Doody’s protection, to preserve valu-
able constitutional rights.
The dissent’s proposition that the warnings could be con-
strued as “reinforc[ing] that Doody was faced with a phase of
the adversary system,” see Dissenting Opinion, pp. 3019-20,
is more wishful thinking than fact. The detective’s very words
belie such a construction. Neither was the detective’s foray a
minor “deviation” from the printed warnings. Rather, the
detective’s garbled, rambling, inaccurate, obfuscatory advise-
ment consumed twelve pages of transcript. Although no
magic words are required, Miranda warnings must “clearly
inform[ ]” the individual of his rights. Miranda, 384 U.S. at
471. The dissent’s best efforts notwithstanding, the transcript
speaks for itself, revealing a patent lack of clarity. The Ari-
zona Court of Appeals’ ruling to the contrary unreasonably
applied Miranda’s requirement that the warnings “clearly
inform[ ].” Miranda, 384 U.S. at 471.
B. Voluntariness of Doody’s Confession4
[4] In determining the voluntariness of a confession, a
court “examines whether a defendant’s will was overborne by
the circumstances surrounding the giving of a confession.”
Dickerson v. United States, 530 U.S. 428, 434 (2000) (citation
and internal quotation marks omitted). “The due process test
takes into consideration the totality of all the surrounding cir-
cumstances — both the characteristics of the accused and the
details of the interrogation.” Id. (citations and internal quota-
4
Our dissenting colleagues dismiss our discussion of the voluntariness
of Doody’s confession as gratuitous. See Dissenting Opinion, p. 3041. To
the contrary, voluntariness is a separate and independent ground for rever-
sal of the Arizona Court of Appeals’ ruling, although the voluntariness
argument also provides additional support for our findings with respect to
the inadequacy of the Miranda warnings Doody received. See Withrow v.
Williams, 507 U.S. 680, 693-94 (1993) (discussing the interrelatedness of
the voluntariness and Miranda inquiries).
2986 DOODY v. SCHRIRO
tion marks omitted). It is not sufficient for a court to consider
the circumstances in isolation. Instead, “all the circumstances
attendant upon the confession must be taken into account.”
Reck v. Pate, 367 U.S. 433, 440 (1961) (citations omitted).
[5] As the Supreme Court has observed, “[t]he application
of these principles involves close scrutiny of the facts of indi-
vidual cases.” Gallegos v. Colorado, 370 U.S. 49, 52 (1962)
(emphasis added). “The length of the questioning, the use of
fear to break a suspect, [and] the youth of the accused are
illustrative of the circumstances on which cases of this kind
turn.” Id. (citations omitted). An additional relevant factor is
“the failure of police to advise the defendant of his rights to
remain silent and to have counsel present during custodial
interrogation.” Withrow, 507 U.S. at 693-94 (citations omit-
ted). Thus, we ask: “Is the confession the product of an essen-
tially free and unconstrained choice by its maker? If it is, if
he has willed to confess, it may be used against him. If it is
not, if his will has been overborne and his capacity for self-
determination critically impaired, the use of his confession
offends due process.” Schneckloth v. Bustamonte, 412 U.S.
218, 225-26 (1973) (citation omitted).
[6] The fact that Doody was a juvenile is of critical impor-
tance in determining the voluntariness of his confession. The
Supreme Court “has emphasized that admissions and confes-
sions of juveniles require special caution.” In re Gault, 387
U.S. 1, 45 (1967). In Haley v. Ohio, 332 U.S. 596, 599-600
(1948), the Supreme Court observed:
What transpired would make us pause for careful
inquiry if a mature man were involved. And when,
as here, a mere child-an easy victim of the law-is
before us, special care in scrutinizing the record
must be used. Age 15 is a tender and difficult age for
a boy of any race. He cannot be judged by the more
exacting standards of maturity. That which would
leave a man cold and unimpressed can overawe and
DOODY v. SCHRIRO 2987
overwhelm a lad in his early teens. This is the period
of great instability which the crisis of adolescence
produces. A 15-year-old lad, questioned through the
dead of night by relays of police, is a ready victim
of the inquisition. Mature men possibly might stand
the ordeal from midnight to 5 a.m. But we cannot
believe that a lad of tender years is a match for the
police in such a contest.
Although Haley involved a fifteen-year old juvenile, the
principles underlying the Supreme Court’s observation apply
equally to Doody’s circumstances given the intensity of his
interrogation and his isolation during twelve-plus sleep-
deprived hours of continuous questioning. See Gilbert v. Mer-
chant, 488 F.3d 780, 791 (7th Cir. 2007) (“[A]s the Supreme
Court explained in Gallegos v. Colorado, a teenager may not
on his own be able to fully appreciate what is at stake when
the police seek to question him[.]”).
[7] The audiotapes of Doody’s interrogation are dispositive
in this case, as we are not consigned to an evaluation of a cold
record, or limited to reliance on the detectives’ testimony. We
can readily discern from the audiotapes an extraordinarily
lengthy interrogation of a sleep-deprived and unresponsive
juvenile under relentless questioning for nearly thirteen hours
by a tag team of detectives, without the presence of an attor-
ney, and without the protections of proper Miranda warnings.
The intensive and lengthy questioning was compounded by
Doody’s lack of prior involvement in the criminal justice sys-
tem, his lack of familiarity with the concept of Miranda warn-
ings, and the staging of his questioning in a straight-back
chair, without even a table to lean on. None of these consider-
ations were even mentioned by the Arizona Court of Appeals.
The dissent denigrates the majority for, in its view,
“attempt[ing] to paint Doody as a tender youth, lacking intel-
lect or sophistication, younger than his chronological age of
seventeen and one-half years.” Dissenting Opinion, p. 3042.
2988 DOODY v. SCHRIRO
However, it is not the majority that has set the standard for
considering the juvenile status of a subject. The Supreme
Court has consistently reminded us that “admissions and con-
fessions of juveniles require special caution.” In re Gault, 387
U.S. at 45; see also Haley, 332 U.S. at 599-600; Gallegos,
370 U.S. at 53 (noting that a teenager may not be fully appre-
ciative of the high stakes involved when “questioned through
the dead of night by relays of police”). More importantly, the
facts, as supported by the record in this case, reveal that
Doody was indeed an unsophisticated teenager.
As recently as 2005, the Supreme Court reminded us of the
special concern with which we should approach issues involv-
ing “juveniles under 18.” The Supreme Court declared that
“as any parent knows and as the scientific and sociological
studies . . . tend to confirm, a lack of maturity and an underde-
veloped sense of responsibility are found in youth more often
than in adults and are more understandable among the young.
These qualities often result in impetuous and ill-considered
actions and decisions.” Roper v. Simmons, 543 U.S. 551, 569
(2005) (citations, alteration, and internal quotation marks
omitted). “In recognition of the comparative immaturity and
irresponsibility of juveniles, almost every State prohibits
those under 18 years of age from voting, serving on juries, or
marrying without parental consent.” Id. (citation omitted).
Apparently, the State of Arizona holds a similar view of the
inability of juveniles to fully appreciate the magnitude of vari-
ous life experiences. See Porter v. Triad of Ariz., 52 P.3d 799,
802 (Ariz. Ct. App. 2002) (“[I]n Arizona, a minor is never
allowed to bring an action in his own name but must always
sue through a representative whatever the cause of action.”)
(citation omitted); First Nat’l Bank of Ariz. v. Taylor, 426
P.2d 663, 666 (Ariz. Ct. App. 1967) (“[M]inor beneficiaries
cannot consent to the termination of a trust for their benefit.”)
(citations omitted); A.R.S. § 4-101 (18) (establishing the
“legal drinking age” as “twenty-one years of age or older”);
A.R.S. § 28-3320 (A)(5) (providing for suspension of driver’s
DOODY v. SCHRIRO 2989
license of individual “under eighteen years of age” for pos-
sessing or purchasing materials “used for graffiti”); A.R.S.
§ 5-504 (B)(5) (prohibiting individuals under eighteen years
of age from selling lottery tickets); A.R.S. § 5-515.02 (prohib-
iting individuals under twenty-one years of age from purchas-
ing lottery tickets); A.R.S. § 5-601.02 (w)(1) (prohibiting
persons under twenty-one years of age from gambling);
A.R.S. § 8-101 (4) (defining “child” as “any person under
eighteen years of age”); A.R.S. § 9-500.26 (regulating entry
from Arizona into Mexico “by any resident . . . who is under
eighteen years of age”); A.R.S. § 13-3111 (prohibiting minors
under eighteen years of age from possessing firearms); A.R.S.
§ 13-3403 (A)(2) (prohibiting sale or transfer of “a vapor-
release substance containing a toxic substance to a person
under eighteen years of age.”); A.R.S. § 13-3403.01 (A) (pro-
hibiting the sale or delivery of a container containing nitrous
oxide “to a person under eighteen years of age”); A.R.S. § 13-
3513 (prohibiting sale or distribution in vending machines of
materials harmful to individuals under the age of eighteen);
A.R.S. § 13-3721 (A)(1) (prohibiting tattooing or body pierc-
ing “of a person who is under eighteen years of age without
the physical presence of the parent or legal guardian . . .”);
A.R.S. § 15-805 (B)(1) (requiring presence of parent or per-
son having custody when a citation for not attending school
“is issued to a child under eighteen years of age”); A.R.S.
§ 17-362 (A) (prohibiting any person “under eighteen years of
age” from serving as a licensed guide); A.R.S. § 23-231 (pro-
hibiting persons under the age of eighteen from being
employed in certain occupations unless a variance is
obtained); A.R.S. § 25-102 (A) (providing that “[p]ersons
under eighteen years of age shall not marry without the con-
sent of the parent or guardian having custody of such per-
son”); A.R.S. § 28-1555 (A) (“A court shall not dispose of a
moving traffic violation charge arising from the issuance of a
traffic citation to a juvenile under eighteen years of age unless
a parent or guardian of the juvenile appears in court with the
juvenile at the time of the disposition of the charge.”); A.R.S.
2990 DOODY v. SCHRIRO
§ 32-558 (requiring private schools to enter into a contract
with students, and providing that “[a] contract between a
school and a student shall bear the signature of a school offi-
cial and the student or parent or guardian if the student is
under eighteen years of age”); A.R.S. 36-798.01 (limiting
access of persons under eighteen to tobacco products); A.R.S.
§ 44-1602 (H) (“A dealer shall not purchase any precious item
from any person under eighteen years of age unless the person
is accompanied by a parent or guardian who must submit
identification . . .”); A.R.S. § 11-251(40) (permitting board of
supervisors to impose curfew on minors); A.R.S. § 28-3151,
Op. Atty. Gen. No. 67-25-L (providing that a chauffeur’s
license cannot be issued to a person under eighteen years of
age); A.R.S. § 36-333.03 (A) (requiring parent or legal guard-
ian of a person under eighteen years of age to petition court
to establish minor’s date of birth, place of birth, and parent-
age); A.R.S. § 36-673 (D) (“A minor child [under eighteen
years of age] shall not be immunized without the informed
consent of the parent, guardian or person in loco parentis of
the child . . .”).
In sum, under the law, and as a matter of fact and common
knowledge, Doody’s participation in ROTC, his not-yet-
completed high school studies, his work as a grocery store
bagger, his ability to speak English as a second language and
his lack of mental disability in no way lessen the Supreme
Court’s instruction regarding the special caution with which
we review a confession extracted from a teenager.
The dissent makes the same mistake the Arizona Court of
Appeals made — ticking off the list of circumstances rather
than actually considering them in their totality. Lest the dis-
sent remain “confounded” by this unremarkable conclusion,
Dissenting Opinion, p. 3054, we liken the Court of Appeals
superficial approach to the listing of a number of mental con-
ditions without explaining how and the extent to which those
conditions affect an individual’s ability to reason. See, e.g.,
Earp v. Ornoski, 431 F.3d 1158, 1178 (9th Cir. 2005), as
DOODY v. SCHRIRO 2991
amended (noting the expert’s conclusion of the nature of the
mental impairment and how that impairment affected the indi-
vidual). The Court of Appeals’ approach is also similar to the
state court analysis we criticized in Barker v. Fleming, 423
F.3d 1085 (9th Cir. 2005), where we noted the “crucial”
requirement from the Supreme Court of a cumulative assess-
ment when determining the materiality of Brady evidence. Id.
at 1094. We observed that “the Washington Supreme Court
did not conduct [a cumulative] analysis. Instead, the court
separately analyzed the . . . evidence . . . on a piece-meal basis
and then ended its analysis.” Id. Likewise, the Arizona Court
of Appeals listed the circumstances of Doody’s interrogation
separately “on a piece-meal basis and then ended its analysis.”
Id.
Most disturbing is the dissent’s reliance on the Arizona
Court of Appeals’ justification that “the officers offered
Doody food and drinks and accommodated his requests to use
the restroom.” Dissenting Opinion, pp. 3045. Never mind that
the first break was over nine hours into the interrogation, after
Doody’s will was overborne. That fact was not discussed at
all by the Arizona Court of Appeals. The court also com-
pletely ignored the fact that Doody was not a native of this
country, other than to note that his English was “lightly
accented.” See Doody, 940 P.2d at 445. The court never even
mentioned the number of officers involved in the interroga-
tion, the tag team approach used, or the false confessions that
the same police task force had extracted previously from the
Tuscon suspects.5 Doody’s statements were simply not volun-
5
The dissent concedes that “the state court did not describe the physical
surroundings” of the interrogation. Dissenting Opinion, p. 3045 n.8. In an
effort to fill this void, the dissent describes the physical surroundings as
“what had been the office of a Maricopa County attorney, roughly ten feet
by eighteen feet in size, well-lit, with carpeted floors and padded chairs
. . .” Id. The dissent completely fails to mention that the chair where
Doody was seated had a straight, immobile back. There was no table or
desk on which Doody could lean or rest his head. For almost thirteen
hours, Doody was required to sit completely upright while being interro-
gated by a tag team of officers.
2992 DOODY v. SCHRIRO
tary given the totality of the circumstances. For the most part,
Doody was virtually non-responsive despite being peppered
with a barrage of questions, exhortations, and commands.
This pattern recurred throughout the interrogation.
The Arizona Court of Appeals’ ruling was also premised on
an unreasonable determination of several pivotal facts. For
example, the Arizona Court of Appeals held that “[e]ach of
the officers involved in the interrogation testified at the sup-
pression hearing that Doody remained alert and responsive
throughout the interrogation and did not appear overtired or
distraught. Our review of the audio tapes confirms the offi-
cers’ testimony.” Id. at 446. The court of appeals also deter-
mined that “[t]he record, both at the time of the suppression
hearing and after trial, includes no evidence that calls into
question the testimony that Doody remained alert and respon-
sive.” Id. (emphasis added). However, a careful review of the
audiotapes reveals a completely different scenario. During the
relentless questioning by the detectives, Doody was anything
but “responsive.” In fact, the detectives utilized relentless
interrogation tactics precisely because Doody remained unre-
sponsive and did not provide the answers they sought. At
approximately 3:00 a.m., the three officers bombarded Doody
with questions in the face of almost complete silence from
Doody. They asked him five times who devised the plan to go
to the temple. Doody did not answer. They inquired fourteen
times whether Caratachea came up with the idea. Doody
responded only once — that he did not know. They asked
twenty-five times whether Doody was present at the temple.
Doody was silent. During this sequence, lasting approxi-
mately twenty minutes, Doody answered one out of forty-five
questions. That is a far cry from responsive. Indeed, at one
point Doody was admonished to “stop freezing up.”
The next series of questions addressed whether Doody’s
failure to respond was due to threats from someone. As an ini-
tial matter, we note that this line of questioning completely
undermines the detectives’ testimony and the Court of
DOODY v. SCHRIRO 2993
Appeals’ conclusion that Doody was responsive. If Doody
were indeed responsive, there would be no need to question
him regarding why he was not responding. Doody responded
to a few of these questions, but again fell silent when the
detectives inquired seven times about whose idea it was to go
to the temple. Doody remained silent for eight minutes in the
face of thirty questions in a row. Doody only broke his silence
when Detective Sinsabaugh asked him nine times whether he
remembered the detective’s name. Doody’s answers to these
questions from Detective Sinsabaugh were barely audible.
The suppression hearing testimony confirms that Doody
was not “alert and responsive.” Although Detective Riley tes-
tified that Doody was alert, this was not the full extent of his
suppression hearing testimony. Detective Riley confirmed
that there were extended periods during the interrogation
when Doody remained unresponsive, when Doody’s posture
“deteriorated,” and when Doody looked down at the ground
for long periods of time. Detective Riley also acknowledged
that there were several pages of transcript reflecting that
Doody did not respond to his continuous questioning.
[8] In view of the fact that we are considering the question-
ing of a sleep-deprived juvenile subjected to nearly thirteen
hours of uninterrupted interrogation, the degree of Doody’s
responsiveness is a pivotal concern. The audiotapes reveal
that the Arizona Court of Appeals’ factual determination that
there was no evidence indicating Doody’s non-responsiveness
was “rebutted by clear and convincing evidence.” Gonzalez,
341 F.3d at 903 (citations omitted); see also Wiggins v. Smith,
539 U.S. 510, 528 (2003) (“This partial reliance on an errone-
ous factual finding further highlights the unreasonableness of
the state court’s decision.”). Indeed, the Arizona Court of
Appeals acknowledged that “Doody did not speak for long
periods during the interrogation.” Doody, 930 P.2d at 447.
This acknowledgment directly contravenes the conclusion that
Doody was responsive.
2994 DOODY v. SCHRIRO
The dissent concedes, as it must, that “Doody did not speak
for long periods during the interrogation.” Dissenting Opin-
ion, p. 3051 (quoting Doody, 930 P.2d at 447). Yet, in a
heroic effort to salvage the unreasonable factual finding that
Doody was nevertheless alert and responsive, the dissent
relies on “visual clues” to contradict the tale of the silent audi-
otapes. The dissent’s leap in logic completely fails to account
for the officers’ continuous badgering of Doody for his failure
to respond. If he were in fact responding, why would the
detectives repeatedly question him regarding his lack of
response and urge him to reply? More importantly, the dissent
completely ignores Detective Riley’s testimony describing the
“visual clues” of how Doody’s “posture began to deteriorate.
His attentiveness also deteriorated. And his eye contact
dropped to where he would look at the ground for long peri-
ods of time . . .” Even assuming that there was equivocal evi-
dence of responsiveness, the Arizona Court of Appeals’
finding that no evidence supported Doody’s claim was unrea-
sonable.
The Arizona Court of Appeals also concluded that “the
audio tapes reveal a courteous, almost pleading style of ques-
tioning during most of the interview.” Doody, 930 P.2d at
446. To the contrary, the audiotapes demonstrate that the
detectives’ relentless and uninterrupted interrogation of an
unresponsive juvenile was far from “courteous.” Instead, the
detectives continuously demanded, over and over without a
response from Doody, answers to their questions. The detec-
tives’ unyielding demands for answers clearly rebut the Ari-
zona Court of Appeals’ determination regarding the
interrogation’s tone and convince us that Doody’s confession
was not “the product of an essentially free and unconstrained
choice.” See Schneckloth, 412 U.S. at 225-26. Although the
detectives sometimes couched their questions in “pleading”
language, their tones were far from pleasant, varying from
“pleading” to scolding to sarcastic to demeaning to demand-
ing. Regardless of tone, over twelve hours of insistent ques-
tioning of a juvenile by tag teams of two, three and four
DOODY v. SCHRIRO 2995
detectives became menacing and coercive rather than “courte-
ous.” Tellingly, some of the detectives’ statements, particu-
larly those immediately preceding the confession, informed
Doody that he had to answer their questions. Any doubt
regarding this matter is easily resolved by listening to the
audiotapes. At times, the tones of the detectives are downright
chilling.
Let us not forget that this same task force questioned four
adult men and, undoubtedly using the same tactics, procured
what the State concedes were false confessions from all four.
That the will of four adult men was overborne to the extent
that they confessed to murders they did not commit further
persuades us that the will of this young teen was similarly
overborne. And that is the real elephant in the room, an ele-
phant that both the Arizona Court of Appeals and the dissent
studiously ignore — the undisputed evidence in the record
that this same task force, undoubtedly using the same “courte-
ous, almost pleading style of questioning” extracted false con-
fessions from four adults for the same crime with which
Doody was charged. Is there any doubt that the wills of those
individuals were overborne?6
[9] The existence of the false confessions, careful analysis
of the interrogation tapes and due consideration of the totality
of the circumstances foreclose an intellectually honest conclu-
sion that the finding of voluntariness was reasonable.
The portions of the interrogation tapes quoted above may
appear lengthy. However, they are literally just snippets of the
entire interrogation, which consumed seventeen tapes. These
quotes are excerpts from only two of the tapes, and they are
included as a sketch of the actual interrogation. They reveal
a picture that bears no resemblance to the avuncular scene
6
Although our dissenting colleagues attempt to minimize the import of
the false confessions, see Dissenting Opinion, p. 3053 n.12, they cannot
deny their existence.
2996 DOODY v. SCHRIRO
painted by the Arizona Court of Appeals. The Arizona Court
of Appeals unreasonably minimized the length of Doody’s
interrogation, an important factor in the voluntariness analy-
sis. See Gallegos, 370 U.S. at 52. The Arizona Court of
Appeals determined that Doody confessed voluntarily
because, “[a]lthough the entire interrogation lasted approxi-
mately thirteen hours, Doody admitted he had borrowed Car-
atachea’s rifle at the time of the temple murders after
approximately two and one-half hours of questioning.”
Doody, 930 P.2d at 446. Not so. While admitting that he and
Garcia borrowed the rifle, Doody identified the time frame as
“close to the end of June,” more than a month before the mur-
ders. Doody Interrogation Transcript, Tape #3, p. 30. There-
fore, contrary to the finding of the Arizona Court of Appeals,
Doody decidedly did not admit to involvement in the temple
murders after two and one-half hours of questioning. Indeed,
as reflected in the audiotapes, Doody’s admission to any
involvement occurred only after six-plus hours of intense
interrogation by the detectives. The conclusion that Doody’s
admission occurred after two and one-half hours of question-
ing finds no support in the record.
Our colleagues in dissent reason that, “although the inter-
view lasted nearly thirteen hours, Doody admitted to borrow-
ing the murder weapon after about two and one-half hours
. . .” Dissenting Opinion, p. 3042. The dissent later clarifies
that the Arizona Court of Appeals’ finding that “Doody
admitted he had borrowed Caratachea’s rifle at the time of the
temple murders” was a reasonable factual finding. Dissenting
Opinion, p. 3054 (citing Doody, 930 P.2d at 446) (emphasis
added). In fact, Doody admitted to borrowing the rifle more
than thirty days before the murder. A finding that Doody
admitted possessing the murder weapon at the time of the
crime is patently unreasonable when the admission actually
addressed a time period substantially in advance of the date
of the crime. The dissent accuses the majority of being “disin-
genuous” and “re-writ[ing] the state court’s findings in order
to declare them unreasonable.” Dissenting Opinion, p. 3054.
DOODY v. SCHRIRO 2997
However, there is no need to re-write the state court’s finding
on this point. No amount of sugarcoating can obscure the fact
that the state court unreasonably found that Doody admitted
possessing the murder weapon at the time of the murders
when he made no such admission.
There is also no record support for the Court of Appeals’
trivializing of the hours of interrogation after Doody’s admis-
sion that he was involved in the events at the temple. The
audiotapes reveal that the detectives continued to use the
same interrogation techniques after Doody’s one-word admis-
sion. The detectives continued to pressure Doody for details
concerning the events at the temple. By the end of the interro-
gation, Doody was sobbing almost hysterically.
[10] The prosecution used the details of his confession
against Doody during trial to corroborate the testimonies of
the prosecution’s key witnesses. The hours of interrogation
subsequent to Doody’s confession to being present at the tem-
ple, therefore, were of critical importance to the case against
Doody. The Arizona Court of Appeals’ contrary determina-
tion was objectively unreasonable. See Taylor v. Maddox, 366
F.3d 992, 1008 (9th Cir. 2004) (“[F]ailure to take into account
and reconcile key parts of the record casts doubt on the pro-
cess by which the finding was reached, and hence on the cor-
rectness of the finding.”) (citation omitted).
[11] Finally, the Arizona Court of Appeals’ voluntariness
ruling unreasonably applied clearly established federal law
because it analyzed the individual circumstances of the inter-
rogation without weighing the totality of the circumstances.
As discussed above, the Arizona Court of Appeals failed to
consider “whether [Doody’s] will was overborne by the cir-
cumstances surrounding the giving of a confession.” Dicker-
son, 530 U.S. at 434 (citation and internal quotation marks
omitted). “The determination depends upon a weighing of the
circumstances of pressure against the power of resistance of
2998 DOODY v. SCHRIRO
the person confessing.” Id. (citation, alteration, and internal
quotation marks omitted) (emphasis added).
[12] Rather than weighing all the circumstances, the Ari-
zona Court of Appeals dismissed each relevant fact seriatim
without considering whether Doody’s juvenile will was over-
borne by the relentless questioning of a tag team of detectives
over the course of an interrogation that lasted, virtually with-
out interruption and despite Doody’s non-responsiveness,
from approximately 9:30 p.m. until 10:00 a.m. As noted
above, the Arizona Court of Appeals failed to consider in
totality circumstances including Doody’s youth, his lack of
prior involvement with the criminal justice system, his lack of
familiarity with Miranda warnings, his non-native status, the
length of the interrogation with Doody seated in a straight-
back chair for over nine hours without a break, the lack of
adequate Miranda warnings, the tag team tactics used by the
detectives, the number of interrogators, Doody’s persistent
non-responsiveness, and the previous false confessions. We
recognize that the Arizona Court of Appeals determined that
the Miranda warnings were “clear and understandable,”
Doody, 930 P.2d at 449, thereby explaining its failure to
weigh that particular aspect of the interrogation. However, no
apparent justification can be discerned for the failure to actu-
ally weigh, rather than simply list, the other factors that have
been delineated for consideration by the United States
Supreme Court. This failure of the Arizona Court of Appeals
was an unreasonable application of established authority
requiring consideration of the total circumstances surrounding
the interrogation, and it renders the conclusion of voluntari-
ness infirm. See Reck, 367 U.S. at 440-42 (addressing the
“combination of circumstances”); see also Gallegos, 370 U.S.
at 52 (condemning interrogators “serving in relays”).
In determining the voluntariness of a confession, “[t]he due
process test takes into consideration the totality of all the sur-
rounding circumstances-both the characteristics of the
accused and the details of the interrogation . . . . The determi-
DOODY v. SCHRIRO 2999
nation depends upon a weighing of the circumstances of pres-
sure against the power of resistance of the person confessing.”
Dickerson, 530 U.S. at 434 (citations, alterations, and internal
quotation marks omitted) (emphasis added). The required
weighing of the circumstances was not performed by the state
court.
The dissent’s argument notwithstanding, the jury’s volun-
tariness determination is not dispositive. In Jackson v. Denno,
378 U.S. 368, 390 (1964), the Supreme Court explained:
Expanded concepts of fairness in obtaining confes-
sions have been accompanied by a correspondingly
greater complexity in determining whether an
accused’s will has been overborne-facts are fre-
quently disputed, questions of credibility are often
crucial, and inferences to be drawn from established
facts are often determinative. The overall determina-
tion of the voluntariness of a confession has thus
become an exceedingly sensitive task, one that
requires facing the issue squarely, in illuminating
isolation and unbeclouded by other issues and the
effect of extraneous but prejudicial evidence.
Id. at 390 (citations omitted). Applying Jackson, the Arizona
Court of Appeals has emphasized the importance of the trial
court’s duty to exclude involuntary confessions, irrespective
of the jury’s finding. See State v. Strayhand, 911 P.2d 577,
589 n.3 (Ariz. Ct. App. 1995) (“The dissent says that even if
the confessions should not have been admitted, no fundamen-
tal error occurred because the jury found that they were vol-
untary. The proper procedure for weighing voluntariness is set
out in [Jackson]. The threshold voluntariness inquiry is for the
court and the defendant can reargue the matter to the jury.
Considering Jackson . . . it is clear that when it appears at any
stage of the proceedings that a confession is involuntary, it is
the trial judge’s duty to exclude it from evidence.”) (emphasis
added).
3000 DOODY v. SCHRIRO
Our dissenting colleagues implicitly condemn Doody for
not testifying at the voluntariness hearing. See Dissenting
Opinion, p. 3030. However, as the Arizona state courts have
held, Doody’s failure to testify does not preclude relief. See
id. (“The fact that the Defendant did not testify at the volun-
tariness hearing does not mean that he is not entitled to relief
now.”).
Relying on Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005),
and United States v. Doe, 155 F.3d 1070 (9th Cir. 1998) (en
banc), the dissent also maintains that this court has “repeat-
edly held a suspect’s minor age and the absence of a parent
do not make a confession presumptively involuntary.” Dis-
senting Opinion, pp. 3046. Besides the fact that the majority
opinion never applies any presumption of involuntariness,
these cases are readily distinguishable. In Juan H., the defen-
dant was properly informed of his Miranda rights, and never
made any incriminating statements. See Juan H., 408 F.3d at
1272-73. Accordingly, no credible claim of involuntariness
could be made. See id.
Doe is similarly inapposite. In that case, we noted that
“there [was] no indication that the questioning was oppressive
in any way.” Doe, 155 F.3d at 1075. Such was not the case
with Doody. Indeed, the dissent concedes that the police “en-
gag[ed] in a variety of psychologically coercive interrogating
tactics.” Dissenting Opinion, p. 3048.
The amalgamated citations to Clark v. Murphy, 331 F.3d
1062 (9th Cir. 2003), Jenner v. Smith, 982 F.2d 329 (8th Cir.
1993), United States v. Lehman, 468 F.2d 93 (7th Cir. 1972),
and United States v. Haswood, 350 F.3d 1024 (9th Cir. 2003),
dissenting opinion, p. 3046, are no more persuasive, as none
of these cases involved a juvenile, or lengthy middle-of-the-
night questioning. See Clark, 331 F.3d at 1072 (questioning
of an adult for five hours); Jenner, 982 F.2d at 333-34 (ques-
tioning of an adult for seven hours); Haswood, 350 F.3d at
DOODY v. SCHRIRO 3001
1027-28 (questioning of an adult for an undetermined amount
of time that was inferred to be “all day”).
It is unclear why the dissent cites to Lehman. In that case,
a dentist was questioned in his office, and the Seventh Circuit
observed:
Although Lehman maintains that he felt confined
and watched in his own small private office and that
his will was eventually overcome by the agents’
method of questioning, he found time during this
period of alleged virtual confinement to discuss his
academic achievements and to recommend to one of
the agents what should be done for the treatment of
emphysema. Lehman was in his own suite and not in
custody and could have cut off the interview at any
time. He was found to be a man of intelligence, edu-
cation and maturity. He was apprised of his ques-
tioners’ mission with regard to a determination of the
correctness of his tax returns, and he was not com-
pletely unschooled in the implications of a tax inves-
tigation.
We further note that on at least two occasions the
agents asked Lehman if he wanted to leave for his
golf date.
Lehman, 468 F.2d at 101 (emphasis added). This case in no
way resembles the circumstances of Doody’s interrogation.
The dissent also relies on cases where the Supreme Court
has addressed more extreme facts involving adults. See Dis-
senting Opinion, pp. 3050-51; see also, Greenwald v. Wiscon-
sin, 390 U.S. 519, 520-21 (1968) (interrogation of a defendant
suffering from high blood pressure and deprived of sleep,
food, and medication); Darwin v. Connecticut, 391 U.S. 346,
349 (1968) (forty-eight hour interrogation of a defendant who
had been denied his right to counsel); Beecher v. Texas, 389
3002 DOODY v. SCHRIRO
U.S. 35, 38 (1967) (interrogation of a wounded defendant at
gunpoint over five days); Clewis v. Texas, 386 U.S. 707, 709-
10 (1967) (nine-day interrogation with inadequate food and
sleep); and Davis v. North Carolina, 384 U.S. 737, 746-47
(1966) (questioning over a sixteen-day period with inadequate
food). However, the Supreme Court has never held, let alone
suggested, that the interrogation of a juvenile must meet some
standard of extremity to render a confession involuntary.
Rather, the Supreme Court has directed that we proceed with
the utmost caution when considering the confession of a juve-
nile, being ever mindful of the “tender age” of the individual
involved. In re Gault, 387 U.S. at 45.
DOODY v. SCHRIRO 3003
Volume 2 of 2
3004 DOODY v. SCHRIRO
The dissent seeks to minimize the impact of the Supreme
Court’s holding in Haley, describing this seminal case as
“readily distinguishable.” Dissenting Opinion, p. 3047.
In Haley, the Supreme Court set forth the following back-
ground:
Beginning shortly after midnight this 15-year old lad
was questioned by the police for about five hours.
Five or six of the police questioned him in relays of
one or two each. During this time no friend or coun-
sel of the boy was present. Around 5 a.m.-after being
shown alleged confessions of Lowder and Parks-the
boy confessed . . .
332 U.S. at 598. Despite the absence of extreme facts, the
Supreme Court concluded:
The 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 (emphasis added).
The dissent does not even mention the operative facts
regarding the actual interrogation in Haley:
What transpired would make us pause for careful
inquiry if a mature man were involved. And when,
as here, a mere child -an easy victim of the law-is
before us, special care in scrutinizing the record
must be used. Age 15 is a tender and difficult age for
a boy of any race. He cannot be judged by the more
exacting standards of maturity. That which would
leave a man cold and unimpressed can overawe and
DOODY v. SCHRIRO 3005
overwhelm a lad in his early teens. This is the period
of great instability which the crisis of adolescence
produces. A 15-year old lad, questioned through the
dead of night by relays of police, is a ready victim
of the inquisition. Mature men possibly might stand
the ordeal from midnight to 5 a.m. But we cannot
believe that a lad of tender years is a match for the
police in such a contest. He needs counsel and sup-
port if he is not to become the victim first of fear,
then of panic. He needs someone on whom to lean
lest the overpowering presence of the law, as he
knows it, may not crush him. No friend stood at the
side of this 15-year old boy as the police, working in
relays, questioned him hour after hour, from mid-
night until dawn. No lawyer stood guard to make
sure that the police went so far and no farther, to see
to it that they stopped short of the point where he
became the victim of coercion. No counsel or friend
was called during the critical hours of questioning. A
photographer was admitted once this lad broke and
confessed. But not even a gesture towards getting a
lawyer for him was ever made.
Haley, 332 U.S. at 599-600. The dissent skips over these facts
in favor of several facts in Haley that occurred after the inter-
rogation. See Dissenting Opinion, pp. 3047. In the paragraph
immediately following the Supreme Court’s description of the
interrogation, the Supreme Court observed:
This disregard of the standards of decency is under-
lined by the fact that he was kept incommunicado for
over three days during which the lawyer retained to
represent him twice tried to see him and twice was
refused admission. A photographer was admitted at
once; but his closest friend-his mother-was not
allowed to see him for over five days after his arrest.
It is said that these events are not germane to the
present problem because they happened after the
3006 DOODY v. SCHRIRO
confession was made. But they show such a callous
attitude of the police towards the safeguards which
respect for ordinary standards of human relationships
compels that we take with a grain of salt their pres-
ent apologia that the five-hour grilling of this boy
was conducted in a fair and dispassionate manner.
When the police are so unmindful of these basic
standards of conduct in their public dealings, their
secret treatment of a 15-year old boy behind closed
doors in the dead of night becomes darkly suspi-
cious.
Haley, 332 U.S. at 600 (emphasis added). In the next para-
graph, the Supreme Court applied the relevant totality of the
circumstances standard:
The 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. Neither
man nor child can be allowed to stand condemned by
methods which flout constitutional requirements of
due process of law.
Id. at 600-01 (emphasis added). Haley, therefore, is not “read-
ily distinguishable.” Dissenting Opinion, p. 3047. Indeed, the
facts of Haley are much more analogous to the circumstances
faced by Doody than are the cases cited by the dissent in sup-
port of its argument.
The dissent also cites to United States ex rel. Hayward v.
Johnson, 508 F.2d 322 (3d Cir. 1975), Rogers v. Quarterman,
555 F.3d 483 (5th Cir. 2009), Jackson v. McKee, 525 F.3d
430 (6th Cir. 2008), and Hardaway v. Young, 302 F.3d 757
(7th Cir. 2002), for the proposition that other circuits have
also readily distinguished Haley. See Dissenting Opinion, p.
DOODY v. SCHRIRO 3007
3047-48 n.10. A close examination of these cases reflects why
they distinguished Haley, and in no way support the Arizona
Court of Appeals’ ruling.
In Hayward, the seventeen-year old defendant “was ques-
tioned on three separate occasions . . . each time in a small
interrogation room at the police station and each time after
receiving the full Miranda warnings. . . . [H]e went voluntar-
ily and with his mother’s permission each time he was ques-
tioned.” 508 F.2d at 324. The Third Circuit observed:
[W]e are troubled by the police conduct here, involv-
ing a late night questioning, without any apparent
justification, of a seventeen-year old youth. We also
acknowledge that the Supreme Court’s decision in
[Haley], on which appellant relies, is in some
respects similar to the case before us. In that case,
the Supreme Court held involuntary the confession
of a fifteen-year old boy who was taken from his
home at night and questioned steadily from 12:00
midnight to 5:00 a.m.
Id. at 326.
However, the Third Circuit relied on the fact that the appel-
lant never challenged the adequacy of the Miranda warnings
to distinguish Hayward from Haley. See id. at 327. The Third
Circuit also noted that:
the period of questioning was shorter and the man-
ner of questioning seems less coercive. Unlike the
youth in [Haley], who gave his confession only after
five hours of continuous incommunicado question-
ing by five or six policemen in relays of one or two
each, appellant here began to give his confession
early on the third occasion he was questioned, and
the questioning was conducted predominantly by one
person, Detective Kelly.
3008 DOODY v. SCHRIRO
Furthermore, the confession was obtained only on
the third occasion he was questioned. By October 3,
the circumstances of his questioning and the setting
at the police station must have appeared less novel
and intimidating; after two previous questionings he
had been sent home, where he had the opportunity,
unpressured by the police, to consider his situation;
he was fully informed that the police were investigat-
ing his possible role in the death of William Smith;
and he was surely aware that the police had twice
released him without obtaining a confession. There-
fore, since he had been subjected to unfamiliar sur-
roundings on two prior occasions and yet had
withstood lengthy questionings without confessing,
we find it difficult to conclude that he was not acting
voluntarily on October 3, when he began giving his
oral incriminatory statement shortly after arriving
and completed giving it within an hour and fifteen
minutes of questioning. Finally, unlike the Supreme
Court in Haley, we, find no evidence of a callous dis-
regard of appellant’s rights by the police after he
gave his confession which might cast suspicion on
their conduct throughout the questioning.
Id. at 327 (citation and footnote references omitted) (empha-
ses added). Contrary to the dissent’s assertion, the Third Cir-
cuit did not distinguish Haley simply because the “suspect
was informed of his right to remain silent.” Dissenting Opin-
ion, p. 3047-48 n.10 (internal quotation marks omitted).
In Rogers, 555 F.3d at 485, after being informed of his
rights by a magistrate, the defendant
was then taken to an interview room and left alone
for a short amount of time. He was offered a soda.
He was then interrogated by the officers for three to
five minutes. During this time, Rogers claimed he
was innocent. Anderson became frustrated and told
DOODY v. SCHRIRO 3009
Rogers to stop lying because his prints had been
found at the crime scene. Rogers began to tear up, so
he was asked if he would like to speak with a partic-
ular officer about the offense. Rogers chose Douglas,
so Miller and Anderson left the room. After 30-35
minutes, Douglas exited the interview room and
stated that Rogers had confessed.
Id. at 485 (emphasis added). In distinguishing Haley, the Fifth
Circuit opined:
Rogers was not continuously or lengthily interro-
gated . . . Most significantly, he was not subjected to
physical abuse, mental coercion, trickery, or deceit
. . . The officers were truthful when they represented
to Rogers that his fingerprints had been found at the
scene, and there is no evidence that the officers
somehow induced Rogers’s confession. Moreover,
Rogers was afforded the full, extensive protections of
section 51.09 of the Texas Family Code.7
Id. at 495 (emphases added). The safeguards present in Rog-
ers were not available in Haley or to Doody.
In Jackson, the seventeen-year old defendant was interro-
gated on several occasions. The Sixth Circuit distinguished
Haley :
7
Texas Family Code § 51.06 provides:
Unless a contrary intent clearly appears elsewhere in this title,
any right granted to a child by this title or by the constitution or
laws of this state or the United States may be waived in proceed-
ings under this title if: (1) the waiver is made by the child and the
attorney for the child; (2) the child and the attorney waiving the
right are informed of and understand the right and the possible
consequences of waiving it; (3) the waiver is voluntary; and (4)
the waiver is made in writing or in court proceedings that are
recorded.
3010 DOODY v. SCHRIRO
Jackson, by contrast [to Haley], was older (17 years
old); he was questioned intermittently, not continu-
ously; he was told repeatedly of his rights to counsel
and to remain silent; and no evidence shows that the
officers took a callous attitude toward his rights . . .
Jackson, 525 F.3d at 435 (citations omitted) (emphasis
added). Because the defendant “was questioned intermittently,
not continuously,” “told repeatedly of his rights to counsel
and to remain silent,” and “[t]he officers’ questioning . . .
never exceeded two and a half hours at a time,” it is not sur-
prising that the Sixth Circuit did not fault the state court for
“declining to extend [Haley]” to the facts. Id. at 434-35. Con-
trary to the dissent’s characterization, the Sixth Circuit, there-
fore, did not distinguish Haley only on the basis that the
“suspect, by contrast, was older (17 years old).” Dissenting
Opinion, p. 3047-48 n.10.
Finally, in Hardaway, the Seventh Circuit noted:
Hardaway’s case is less egregious [than Haley’s], in
that there were no efforts to keep his parents away
or to confront him with false testimony, and he was
held for less than one day rather than three.8 There
were also lengthy breaks in the interrogations,
rather than the five grueling hours that Haley was
forced to endure.
8
Although the dissent relies on this statement that the defendant “was
held for less than one day rather than three,” to distinguish Haley from
Doody, see Dissenting Opinion, p. 3047-48 n.10, it is important to remem-
ber that the holding of Haley for three days occurred after his interroga-
tion. See Haley, 332 U.S. at 600. It is unclear why the dissent implies that
three days in custody is somehow a temporal benchmark for whether a
confession is involuntary, particularly as the Supreme Court emphasized
that Haley was “questioned through the dead of night by relays of police
. . . from midnight to 5 a.m.” Id. at 599.
 DOODY v. SCHRIRO 3011
Hardaway, 302 F.3d at 763 (citations, alteration, and internal
quotation marks omitted). Contrary to the dissent, the Seventh
Circuit did not simply distinguish Haley because “the suspect
was held for less than one day rather than three.” Dissenting
Opinion, p. 3047-48 n.10 (internal quotation marks omitted).
Simply put, the dissent attempts to distinguish Haley by
relying on several cases from other circuits. See Dissenting
Opinion, p. 3047-48 n.10. However, those cases in no way
support the dissent’s assertion that Haley is inapposite.
Although AEDPA requires deference to the state courts in
their factual findings and legal conclusions, deference does
not equate to abdication of our judicial responsibilities. See
Taylor, 366 F.3d at 1008 (“In passing section 2254(d)(2),
Congress has reminded us that we may no more uphold such
a factual determination than we may set aside reasonable
state-court fact-finding. When we determine that state-court
fact-finding is unreasonable, therefore, we have an obligation
to set those findings aside and, if necessary, make new find-
ings.”). We recognize and acknowledge that police officers
are entitled to use, and do use, a variety of techniques to inter-
rogate suspects. However, when those techniques overbear
the will of the suspect in contravention of his constitutional
rights, any confession obtained through the overbearance
must be suppressed. See DeWeaver, 556 F.3d at 1002-03 (“A
confession must be suppressed, even absent a Miranda viola-
tion, when the totality of the circumstances demonstrates that
the confession was involuntary.”) (citation omitted).
With the utmost respect to our concurring colleague, we do
not view our opinion as an exercise in “yarn-spinning.” See
Concurring Opinion, p. 3017. Rather, we address the Arizona
Court of Appeals’ unreasonable determinations, including that
there was “no evidence that calls into question the testimony
that Doody remained alert and responsive.” Doody, 530 P.2d
at 446 (emphasis added). To uphold this determination, we
would have to conclude that Doody’s claims were made from
3012 DOODY v. SCHRIRO
whole cloth. The record in this case forecloses such a determi-
nation, and highlights the unreasonableness of the state
court’s finding that no such evidence existed.
C. Harmless Error
[13] A coerced confession is generally not admissible evi-
dence. See id. However, in this case, Doody’s statements con-
fessing his involvement were admitted into evidence and
considered by the jury. On habeas review, once we determine,
as we discussed above, that the state court’s voluntariness
determination was an unreasonable application of Supreme
Court precedent, we turn to the consideration of whether the
error was harmless. “Because the court of appeal[s] found the
confession admissible, it did not conduct harmless-error anal-
ysis. We must therefore review the evidence at trial to deter-
mine whether the confession likely had a substantial and
injurious impact on the verdict; if not, its admission was
harmless.” Taylor, 366 F.3d at 1016 (citations omitted).
“[T]he question is whether the erroneously admitted evidence
had a substantial and injurious effect or influence in determin-
ing the jury’s verdict.” Ghent v. Woodford, 279 F.3d 1121,
1127 (9th Cir. 2002), as amended (citations and internal quo-
tation marks omitted).
At trial, Doody argued that there was no physical evidence
linking him to the temple murders; the investigation was mis-
managed; the prosecutor charged three individuals, part of the
Tucson Four, who had confessed to the events at the temple;
the testimony of the prosecution’s key witness, Garcia, was
not truthful, because he had a reason to lie given his plea
agreement; and Garcia, Caratachea, and Gonzales committed
the temple murders and Doody was either not involved in the
temple murders at all, or was present only as a bystander.
To counter Doody’s arguments, the prosecution introduced
the audiotapes of Doody’s statements. The prosecution’s reli-
ance on the statements is evidenced by its closing arguments,
DOODY v. SCHRIRO 3013
which were replete with references to the audiotapes.9 For
example, the prosecution argued:
He admits, and this is tape three, page twenty-eight,
and at tape nine, page thirteen, Jonathan Doody
admits, ‘Me and Alex borrowed Rollie’s gun.’ Cor-
roboration now for Rollie Caratachea’s statement to
us, and also corroboration for Alex Garcia’s state-
ments that they, in fact, did borrow that gun from
Rollie. He then admits experimenting with the
silencer, tape four. But later he says, tape eleven,
that it was for use in the temple. The use of the
silencer in the temple, very important. It shows pre-
meditation to commit the murders, support for Alex
Garcia’s statements. . . . He admits involvement in
the temple, tape nine, page eight. He admits that he
was involved in the temple crimes. The very next
thing he does is he admits that this was with Alex
Garcia.
Trial Transcript, July 8, 1993, pp. 36-37.
In rebuttal, the prosecution also referred to Doody’s state-
ments to support a felony murder conviction. The prosecution
stated:
Let’s do it again. Go inside and let’s see what we can
get. Tape eleven, pages seventeen to eighteen; tape
thirteen, page thirty seven. Those are Jonathan
Doody’s comments. This isn’t the State. . . . Mr.
9
The dissent simultaneously scolds us for reciting the audiotapes at
length and for “leav[ing] key sentences, exchanges, and pages of transcript
unaccounted for.” Dissenting Opinion, p. 3054-55. Yet, the dissent does
not give one concrete example of omitted information from the audiotapes
that would salvage this interrogation. Because the audiotapes highlight the
unreasonableness of the state court’s findings, it is completely understand-
able that the dissenters would prefer that these audiotapes not see the light
of day.
3014 DOODY v. SCHRIRO
Doody is on trial. This is what he said. He told us
this. He went back in that temple to see what he
could get. . . . They went in there with force, and
that’s armed robbery, and that’s a conviction of fel-
ony murder. Pure and simple.
Id. at 155-56.
The prosecution commented that the case was “easy
because of what Jonathan Doody tells us. Alex Garcia corrob-
orates it, gives us a lot of detail. The evidence, gives a lot of
corroboration, a lot more detail. But you don’t have to go
beyond Jonathan Doody’s statement . . .” Id. at 156 (emphasis
added). Despite the dissent’s effort to catalog other evidence
against Doody, the record reflects that Doody’s statements
were the linchpin of the prosecution’s case.
[14] As evidenced by the prosecution’s arguments,
Doody’s statements were integral to the prosecution’s case,
particularly as “the defendant’s own confession is probably
the most probative and damaging evidence that can be admit-
ted against him.” Arizona v. Fulminante, 499 U.S. 279, 296
(1991) (citations omitted). We cannot conclude that the
admission of Doody’s confession was harmless error because
Doody’s statements likely “had a substantial and injurious
effect or influence in determining the jury’s verdict.” Ghent,
279 F.3d at 1127.
IV. CONCLUSION
[15] We hold that the Arizona Court of Appeals’ decision
constituted an unreasonable determination of the facts and an
unreasonable application of the governing law to the particu-
lar facts of this case. The Arizona Court of Appeals unreason-
ably concluded that the Miranda warnings were clear and
understandable, despite the detective’s erroneous warnings
regarding Doody’s right to counsel and the use of qualifying
language to downplay the warnings’ significance. Thus, we
DOODY v. SCHRIRO 3015
hold that under the standard of review set forth in AEDPA,
Doody is entitled to a writ of habeas corpus on the ground that
the Miranda warnings the police gave him were inadequate
and his confession was therefore inadmissible.10
Additionally, the Arizona Court of Appeals’ ruling that
Doody’s confession was voluntary was an unreasonable deter-
mination of the facts in light of the audiotapes that reflect the
relentless, nearly thirteen-hour interrogation of a sleep-
deprived juvenile by a tag team of detectives. The Arizona
Court of Appeals also unreasonably applied clearly estab-
lished federal law when it failed to consider the totality of the
circumstances to determine if Doody’s will was overborne by
the interrogation. Accordingly, we hold that under the stan-
dard of review set forth in AEDPA, Doody is entitled to a writ
of habeas corpus on the ground that his confession of his
involvement in the temple murders was involuntary, and
therefore inadmissible.
Accordingly, we REVERSE and REMAND this case to
the district court to grant Doody’s habeas petition unless the
State of Arizona elects to retry Doody within a reasonable
time.
10
Our dissenting colleague’s leadoff reference to the recent Supreme
Court decision of McDaniel v. Brown, 130 S. Ct. 665 (2010), see Dissent-
ing Opinion, p. 3025, is puzzling. Brown involved this court’s application
of Jackson v. Virginia, 443 U.S. 307 (1979) in resolving a sufficiency-of-
evidence challenge. See Brown, 130 S. Ct. at 667 (“We granted certiorari
to consider whether [the District Court and Court of Appeals] misapplied
Jackson.”). The discussion of § 2254(d)(1) was made in the context of our
described failure to “review the evidence in the light most favorable to the
prosecution” as required by Jackson. Id. at 673 (citation and internal quo-
tation marks omitted). In contrast, this case concerns review of the ade-
quacy of a Miranda warning and the voluntariness of a confession, neither
of which is governed by the Jackson directive to view all evidence in the
light most favorable to the prosecution.
3016 DOODY v. SCHRIRO
KOZINSKI, Chief Judge, concurring in the result:
Not for the first or last time, we’re asked to consider what
it means for an opinion of a state court to be “unreasonable”
under 28 U.S.C. § 2254(d). I write separately because I
believe that deference is neither a blindfold nor a bandana.
The state court may well have been wrong to find Doody’s
confession voluntary. Doody, a teenager, was isolated from
his friends and family and interrogated for over twelve hours.
Working in shifts, police kept Doody awake overnight. They
employed many of the psychological techniques that troubled
the Supreme Court in Miranda v. Arizona:
To be alone with the subject is essential to prevent
distraction and to deprive him of any outside sup-
port. . . . He merely confirms the preconceived story
the police seek to have him describe. Patience and
persistence, at times relentless questioning, are
employed. To obtain a confession, the interrogator
must “patiently maneuver himself or his quarry into
a position from which the desired objective may be
attained.” When normal procedures fail to produce
the needed result, the police may resort to deceptive
stratagems such as giving false legal advice. It is
important to keep the subject off balance . . . . The
police then persuade, trick, or cajole him out of exer-
cising his constitutional rights.
384 U.S. 436, 455 (1966). The police pled with Doody, over
and over, to “tell me,” “trust me” and “[t]alk to me so I under-
stand.” They ordered him: “You have to tell us.” They warned
him: “There are statements, I’d say damaging statements
toward you and its gonna, and its gonna pile up Jon, it’s
gonna be so deep.” They said they knew “you’ve got some
tremendous answers up in that, that head of yours” because
they “could just tell it in your eyes,” and they lied to him: “I
probably won’t ask you a question, that I don’t already know
DOODY v. SCHRIRO 3017
the answer.” They promised him, falsely, that his words were
“between us,” and that “[w]hat you tell us right now, is gonna
stay right here.” Doody was silent for long periods of ques-
tioning, and he ended the interrogation in tears.
But that’s not the only way to read the record. As the state
court noted, Doody was nearly eighteen, maintained good
grades and “participated in his high school honor guard.”
State v. Doody, 930 P.2d 440, 445 (Ariz. Ct. App. 1996). The
officers employed a “courteous, almost pleading style of
questioning” and “testified at the suppression hearing that
Doody remained alert and responsive throughout the interro-
gation.” Id. at 446. The officers also “offered Doody food and
drinks and accommodated his requests to use the restroom.”
Id. During his long periods of silence, Doody may have been
thinking up a story that would fit the evidence against him but
also keep him out of trouble. Indeed, when Doody confessed,
he gave a relatively exculpatory account in which he was out-
side the temple at the time of the killing. He started crying,
he said, because the police “came out and ma[d]e it sound like
[they] didn’t believe” that version of events. That’s the state-
ment of a person who had staked his future on a half-truth, as
opposed to someone whose will was overborne.
I doubt anyone but Doody will ever know with certainty
whether his confession was voluntary, and perhaps not even
he. After all, “Difficulties of proof and subtleties of interroga-
tion . . . [make] it impossible in most cases for the judiciary
to decide with confidence whether [a] defendant . . . voluntar-
ily confessed.” New York v. Quarles, 467 U.S. 649, 683
(1984) (Marshall, J., dissenting). The majority spins a good
yarn, but the state court also told a good story. Even federal
judges can’t read Doody’s mind or travel back in time. And,
as the Supreme Court has told us, “The more general the rule,
the more leeway courts have in reaching outcomes.” Yarbor-
ough v. Alvarado, 541 U.S. 635, 664 (2004). This is precisely
the kind of debatable application of a “general standard”
where finality and respect for the independent judgment of the
3018 DOODY v. SCHRIRO
state courts counsels the highest deference on federal habeas
review. See Knowles v. Mirzayance, 129 S. Ct. 1411, 1420
(2009). I would therefore let stand the state court’s finding
that the confession was voluntary.
But, unlike voluntariness, “a warning is a clearcut fact.”
Miranda, 384 U.S. at 469. Voluntariness asks courts to specu-
late about intangibles, but Miranda seeks “ascertainable
assurance that the accused was aware” of his rights. Id. at 472
(emphasis added). It therefore provides a “clear, easily admin-
istered device for ensuring that criminal suspects understand
their constitutional rights,” Quarles, 467 U.S. at 683 (Mar-
shall, J., dissenting), and experience has proved that its bright
line rule is manageable “for law enforcement officers to con-
form to, and for courts to apply in a consistent manner,” Dick-
erson v. United States, 530 U.S. 427, 444 (2000).
Accordingly, when a state court asks whether a suspect was
adequately warned, “[a]pplications of the rule may be plainly
correct or incorrect.” Yarborough, 541 U.S. at 664. We need
not defer to plainly incorrect applications.
From tapes of the interrogation, we know exactly what the
police said when informing Doody of his right to an attorney:
[Y]ou have the right to have an attorney present
prior to and during questioning, and what that means
that if you want one, you’re allowed to have a law-
yer here before and during you know my questions
to you, okay. And then an attorney is a lawyer who
will speak for you and help you concerning the
crime or any kind of offense that ah we think that
you or somebody else is involved in, if you were
involved in it, okay. Again, it not necessarily mean
that you are involved, but if you were, then that’s
what that would apply to okay. (emphasis added)
We can listen as the officer recites the familiar words: “[Y]ou
have the right to have an attorney.” And we can listen as he
DOODY v. SCHRIRO 3019
provides a generic and inoffensive definition of “attorney”:
“[A] lawyer who will speak for you and help you.” And,
finally, we can observe in slow motion as the officer’s
Miranda warnings fly off the rails: “[I]f you were involved in
it, okay. Again, it not necessarily mean that you are involved,
but if you were, then that’s what that would apply to okay.”
Those words are undisputed facts.
Faced with those facts, the Arizona Court of Appeals found
that Doody’s rights were read to him “in a clear and under-
standable manner” and that the “officers read each warning
from a standard juvenile form and provided additional expla-
nations as appropriate.” Doody, 930 P.2d at 449. The officer’s
statements about the right to counsel weren’t quoted in the
state court opinion, and the state court never tried to explain
how those words could possibly be “clear,” “understandable”
or “appropriate.” And this wasn’t because Doody failed to
bring them to the court’s attention; his state court brief quoted
the officer’s language and argued:
This ambiguous paraphrase suggested that invoking
the right to counsel would be tantamount to an
admission of guilt. It also suggested Doody did not
have a right to counsel unless he were involved (or
willing to admit involvement), or that the right
would arise when he became a suspect. Those sug-
gestions were not just confusing, but wrong.
Brief of Defendant-Appellant Jonathan Andrew Doody at 24,
Doody, 930 P.2d 440 (No. CR 92-01232). The state court’s
silence in response to Doody’s clear and cogent argument
does not reflect the kind of good faith adjudication of federal
rights that AEDPA strives to insulate from collateral review.
The dissent tells us that the state court’s characterization of
the officer’s words was not unreasonable because the officer
might have meant to “reinforce that Doody was ‘faced with
a phase of the adversary system.’ ” Dissent at 3039-40 (quot-
3020 DOODY v. SCHRIRO
ing Miranda, 384 U.S. at 469). I’m not entirely sure what this
means, and I certainly don’t see anything so benign lurking in
the officer’s words. Here they are again:
[A]n attorney is a lawyer who will speak for you and
help you concerning the crime or any kind of offense
that ah we think that you or somebody else is
involved in, if you were involved in it, okay. Again,
it not necessarily mean that you are involved, but if
you were, then that’s what that would apply to okay.
The officer did say something about the adversary system:
That a lawyer will help you “if you were involved” in crimi-
nal activity, and that the right to an attorney only applies to
you if “you were involved.” This, of course, is not true: The
innocent, no less than the guilty, are entitled to a lawyer. Or,
in Officer Riley’s peculiar argot: “Whether you were involved
or not, then that’s what that would apply to okay.”
The dissent admits that the officer’s words “could be con-
strued” to say you only get a lawyer if you’re guilty. Dissent
at 3039. This pretty much gives up the ship, as warnings that
“could” be construed in such a manner can’t possibly be
“clear,” “understandable” or “appropriate.” It is established
beyond doubt that “an individual held for interrogation must
be clearly informed that he has the right to consult with a law-
yer,” Miranda, 384 U.S. at 471 (emphasis added), and that
warnings must “apprise the accused of his right to have an
attorney present,” Duckworth v. Eagan, 492 U.S. 195, 205
(1989). The whole point of Miranda is to provide “assurance
that the accused was aware” of his rights. 384 U.S. at 472.
There’s no such assurance when a warning “could” be inter-
preted to say the polar opposite of what Miranda requires.
The warning given in this case was far worse than no warn-
ing at all. At least an un-warned suspect may know his rights
without being told about them; many non-lawyers watch Cops
and Law and Order. But a non-lawyer who knows about the
DOODY v. SCHRIRO 3021
right to counsel, and who might even be willing to invoke it
without a warning, may well hesitate to ask for a lawyer after
being told that the right would only apply “if you were
involved.” After all, a request for a lawyer would be an
admission that “you were involved,” as only suspects who
knowingly fall into that category would have a right to ask for
one. Upholding such a warning would contravene the very
core of the rule established by Miranda: When the Court pre-
scribed words that would make suspects aware of their rights,
it certainly did not intend to approve warnings that would
throw those rights into doubt and make invocation of the right
to counsel even less likely than it is already.
Here’s a simple test of the warning’s adequacy: Suppose
everything the officer said had been printed on a standardized
waiver produced by the state. Since this was Arizona, the
birthplace of Miranda, maybe police felt they were entitled to
improve on the Supreme Court’s work; call it Miranda 2.0:
You have the right to an attorney present prior to and
during questioning, provided you were involved in
the crime. (If you were involved, then that right
would apply to you.) Do you understand this right?
Yes______ No______
Now suppose Doody had initialed such a form. Would we
uphold the warning just because it contained the magic words,
“You have the right to an attorney”?
This case is no different, although the officer spoke the
words instead of printing them on paper. As the state court
acknowledged, the officer’s statements were made at the same
time that Doody read his written warnings and were offered
as “explanations” of the rights Doody agreed to waive.
Doody, 930 P.2d at 449. If Miranda 2.0 doesn’t pass muster,
neither does the warning in this case.
3022 DOODY v. SCHRIRO
Even under AEDPA, it’s not possible to bend the record far
enough to sustain the state court’s opinion. The dissent is cor-
rect that the Supreme Court has repeatedly overturned this
court for insufficient deference. Dissent at 3025-26. But the
Court has also said that AEDPA’s “standard is demanding but
not insatiable” and that “ ‘deference does not by definition
preclude relief.’ ” Miller-El v. Dretke, 545 U.S. 231, 240
(2005) (alteration omitted) (quoting Miller-El v. Cockrell, 537
U.S. 322, 340 (2002)). In Anderson v. Terhune, we found that
AEDPA did not require us to manufacture uncertainty and
ambiguity as to whether a suspect invoked his right to silence
when he said, “I plead the Fifth.” 516 F.3d 781, 787 (9th Cir.
2008) (en banc); see also Hart v. Attorney Gen. of Fla., 323
F.3d 884, 894 (11th Cir. 2003). Deference doesn’t mean self-
deception. We can’t ignore the fact that the state court in this
case held up the officer’s language as a model application of
Miranda even though his words were misleading at best and
flat wrong at worst.
The dissent offers a number of other arguments for denying
relief, even if the warnings weren’t “clear,” “understandable”
or “appropriate.” See Dissent at 3039-41. Our dissenting col-
leagues appear to believe that AEDPA deference requires us
to indulge every possible justification for the state court opin-
ion, whether or not the argument is consistent with what the
state court actually held. But we know that’s not the case. See
Rompilla v. Beard, 545 U.S. 374, 390 (2005); Frantz v.
Hazey, 533 F.3d 724, 733-35, 738 (9th Cir. 2008) (en banc).
What deference requires is paying attention to what the state
courts actually have to say. We defer when state courts rea-
sonably adjudicate claims of federal right, even if we think
they’re wrong. But if the state courts don’t act reasonably,
deference comes to an end. We certainly aren’t required to
defer to justifications that the state courts themselves did not
consider.
Perhaps, as the dissent suggests, the officer’s words could
be “construed as having no effect on Doody’s understanding
DOODY v. SCHRIRO 3023
of his right to counsel.” Dissent at 3039. Maybe Doody
wasn’t listening to what the officer said, or maybe he didn’t
believe it. Of course, that’s not what the state court said. Even
if it were, it’s entirely irrelevant. Miranda establishes an
objective test. We can’t uphold defective warnings because
they might have been inadvertently successful, just as we
can’t disregard a properly administered warning because a
particular suspect might have misunderstood.
Nor did anything in the Supreme Court’s opinion in Duck-
worth cast doubt on the relevant legal principles. See Dissent
at 3036-37, 3040. In that case, police told a suspect that they
had “no way of giving you a lawyer, but one will be
appointed for you, if you wish, if and when you go to court”
and that “[y]ou also have the right to stop answering at any
time until you’ve talked to a lawyer.” Duckworth, 492 U.S. at
198 (emphasis omitted). The Court of Appeals thought this
wrongly implied that the right to counsel did not apply before
a suspect went to court, but the Supreme Court held that the
Court of Appeals had “misapprehended the effect” of the lan-
guage. Id. at 203. The Court emphasized that the warning was
entirely true and “accurately described the procedure for the
appointment of counsel in Indiana,” according to which invo-
cation of the right to counsel would require police to cease
questioning altogether unless the suspect paid for his own
lawyer. Id. at 204. Nothing in the Court’s opinion suggested
that officers are permitted to make untrue statements that con-
tradict the warnings required by Miranda. To the contrary, the
Court reaffirmed that warnings must adequately “apprise the
accused of his right to have an attorney present.” Id. at 205.
Finally, the dissent would deny relief because “Doody was
also looking at written warnings that clearly set forth his con-
stitutional rights,” and the Supreme Court has not “indicated
what effect simultaneously acknowledged, written warnings
might have when the oral warnings are unclear.” Dissent at
3040. Even if the state court had advanced this argument (it
3024 DOODY v. SCHRIRO
didn’t), it would be unreasonable to think that the written
warnings remedied the harm. They said:
You have the right to have an attorney present prior
to and during questioning. (This means, if you want
one, you are allowed to have a lawyer here before
and during my questions to you. An attorney is a
lawyer who will speak for you and help you con-
cerning the crime which we think you have done.)
There’s nothing wrong with the written warnings, taken in
isolation, but Doody read the warnings at the same time the
officer offered his “explanation” of the scope of the right to
counsel. The written warnings don’t say that the right to coun-
sel applies to the innocent as well as the guilty, and they don’t
contradict the officer’s statement that the right would apply
only if Doody was “involved.” A reasonable suspect would
assume that the oral warnings clarified the written ones. The
written warnings cannot provide the “assurance” that Doody
was aware of his rights that Miranda requires.
For over forty years, it has been clearly established that
statements made during custodial interrogation cannot be
admitted into evidence unless the defendant was adequately
warned of his rights and the consequences of waiver. See
Miranda, 384 U.S. at 479. The warnings required by Miranda
are brief and very simple; most people—and certainly all
police—know them by heart. It’s not too much to ask that
police recite them as prescribed by the Supreme Court, and
not augment them in a way that will obscure their meaning
and undermine their effect.
Thanks to Miranda’s simple rule, this is a simple case.
We’ll never know whether Doody’s statements were volun-
tary, but it’s plain to see that he wasn’t properly read his
rights. We must grant his petition on that ground alone.
DOODY v. SCHRIRO 3025
TALLMAN, Circuit Judge, with whom Judges RYMER and
KLEINFELD join, dissenting:
I certainly understand the passion behind the majority’s dis-
taste for the facts of this case. I can see how a lengthy over-
night interrogation of a seventeen and one-half year-old high
school student can be off-putting—perhaps so off-putting that
were we reviewing this issue from scratch on direct appeal,
we might be tempted to fashion rules that would afford relief.
But that is not the posture of this case. We are collaterally
reviewing Jonathan Doody’s conviction for the murder of
nine people that was already upheld on direct review by the
Arizona Court of Appeals, and our review is not de novo—as
the majority treats it—but deferential.
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), the question before us is simply whether the Ari-
zona state courts reasonably applied federal law and deter-
mined the facts in concluding that Doody’s confession to
participating in the murders was voluntary. Arizona con-
ducted a ten-day evidentiary hearing and a thirty-four day
trial. Five judges and twelve jurors have thoroughly reviewed
all of the circumstances surrounding the interrogation. All
concluded Doody voluntarily confessed. My colleagues none-
theless parse the record, re-weigh the evidence, and reach a de
novo determination that the written and oral Miranda warn-
ings were inadequate and the confession was coerced. In
doing so, the majority discards as objectively unreasonable
the factual findings made by the trial court, the jury’s consid-
ered verdict, and the well-reasoned opinion of the Arizona
Court of Appeals.
The Supreme Court has repeatedly told us not to do this.
See, e.g., McDaniel v. Brown, ___ S. Ct. ___, 2010 WL
58361, at *7 (Jan. 11, 2010) (“[T]he [Ninth Circuit] Court of
Appeals’ discussion of the . . . evidence departed from the
deferential review that . . . § 2254(d)(1) demand[s].”);
Knowles v. Mirzayance, 129 S. Ct. 1411, 1419-20 (2009)
3026 DOODY v. SCHRIRO
(“The [Ninth Circuit] Court of Appeals reached [the wrong]
result based, in large measure, on its application of an
improper standard of review . . . . The question is not whether
a federal court believes the state court’s determination . . . was
incorrect but whether that determination was unreasonable—
a substantially higher threshold.”) (internal quotation marks
omitted); Waddington v. Sarausad, 129 S. Ct. 823, 833 (2009)
(“The reasoning of the [Ninth Circuit] Court of Appeals . . .
failed to review the state courts’ resolution of this question
through the deferential lens of AEDPA[.]”); Uttecht v. Brown,
551 U.S. 1, 10 (2007) (“The requirements of [AEDPA], of
course, provide additional, and binding, directions to accord
deference . . . . By not according the required deference, the
[Ninth Circuit] Court of Appeals failed to respect the limited
role of federal habeas relief in this area prescribed by Con-
gress and by our cases.”); Schriro v. Landrigan, 550 U.S. 465,
475-80 (2007); Carey v. Musladin, 549 U.S. 70, 76-77 (2006);
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (“An ‘unrea-
sonable application of federal law is different from an incor-
rect application of federal law.’ The Ninth Circuit did not
observe this distinction, but ultimately substituted its own
judgment for that of the state court, in contravention of 28
U.S.C. § 2254(d).”) (citation omitted).
But we are unrepentant and this court once again substi-
tutes its judgment for the judgment of a state trial court and
a state court of appeals. Because it does so, and because I
believe that the Arizona courts’ determinations were neither
contrary to clearly established federal law as declared by the
United States Supreme Court, nor an unreasonable application
of it, I respectfully dissent.
I
A
In August 1991, Phoenix, Arizona, was rocked by nine bru-
tal murders at a Buddhist temple. State v. Doody, 930 P.2d
DOODY v. SCHRIRO 3027
440, 443 (Ariz. Ct. App. 1996). “The victims, including six
Buddhist monks, lay face down in a circle, each shot
execution-style in the head. Several of the victims had sus-
tained additional, non-fatal shotgun wounds. Living quarters
inside the temple had been ransacked, and items of personal
property, including money, cameras, and stereo equipment,
were missing.” Id. A massive investigation followed.
Prosecutors initially charged four men from Tucson, Ari-
zona, with the murders. Id. Then, during a routine traffic stop
on Luke Air Force Base near Phoenix, police found the .22
caliber rifle used to shoot the victims. Id. The owner of the
rifle, Rolando Caratachea, denied any involvement in the
murders, but said that his roommate, Jonathan Doody, and a
friend, Alessandro Garcia, “had borrowed the rifle shortly
before the murders.” Id. at 444.
At that time, Doody was seventeen and one-half years old.
He was born in Thailand but moved to the United States as
a child with his American stepfather, who was in the Air
Force, and his Thai mother. His mother and brother were
members of the temple where the murders occurred, and his
brother had been a novice monk there. Doody visited the tem-
ple when his brother was there. Doody spoke fluent but
lightly accented English. He was a junior in high school,
“maintained a B grade average,” was commander of the junior
Reserve Officers’ Training Corps Honor Guard and Color
Guard, and worked at the Luke Air Force Base Commissary.
Id. at 445-46. Emancipated from his parents who had moved
to Colorado, he lived in an apartment in Arizona with Carat-
achea and another friend.
Based on the scope of the crime—which required control-
ling nine victims while ransacking the temple and then
methodically executing them—the police believed several
people were involved. Maricopa County Sheriff’s detectives
located Doody at a high school football game on a Friday
night. Id. at 443-44. Detective Riley, who had spoken with
3028 DOODY v. SCHRIRO
Doody earlier in the investigation, explained there were now
some additional questions about Caratachea’s rifle and asked
if Doody was willing to come to the Sheriff’s office. Doody
assented and climbed into the detectives’ car.
When they arrived, Doody was placed in what had been the
office of a deputy Maricopa County attorney rather than an
interrogation room. An officer started a tape recorder.
Although Doody was not yet a suspect, Detective Riley none-
theless advised him of his Miranda rights. Riley read each
warning from the standard juvenile Miranda form, which he
gave Doody to follow along. The written text that Doody
simultaneously reviewed and initialed appears in the attached
Appendix. From this document, the Arizona Court of Appeals
could observe that Doody initialed each and every clearly
worded Miranda warning. The Miranda form’s very last
admonition, clearly separated from the numbered warnings,
stated, “If you want to answer questions now without a lawyer
present, you will still have the right to stop answering at any
time. You also have the right to stop answering at any time
until you talk to a lawyer.” Doody indicated, by initialing the
document, that he understood this right, too. At no time did
he stop the questioning.
In addition to the printed text, Riley offered some explana-
tion of each right. He paused after each one while Doody indi-
cated he understood the printed right and initialed each waiver
on the form. Riley also told Doody several times that if he had
any questions, he should feel free to ask. Doody declined to
have a parent or attorney present and clearly expressed that he
was willing to talk with the officers.
Detective Riley began the interrogation around 9:25 p.m.
by questioning Doody about his roommate’s rifle. “Doody
initially denied any knowledge of the events at the temple but,
after two and one-half hours, made inculpatory statements
and, after approximately four more hours of questioning,
admitted to being at the temple on the night of the murders.”
DOODY v. SCHRIRO 3029
Id. at 444. Based on these admissions, the officers continued
their questioning and Doody slowly became more forthcom-
ing.
The interrogation ultimately lasted nearly thirteen hours.
Over the course of the interrogation, Doody admitted he
helped plan the assault on the temple with others, including
Garcia. He recounted, “We borrowed the rifle . . . to see if we
[could] make a silencer . . . .” Tape 11, p. 25. He answered
“Yes” to the question, “Were you going to use the silencer in
the temple?” Id. He said they “drove past the place twice.” Id.
at p. 3. It was “just going to be a joke and it just went down-
hill. We entered the temple, one through each door. Every-
thing was done in clockwork . . . .” Tape 10, p. 8. “We . . .
searched the place for any security.” Id. at p. 12. “They were
laying down . . . face down.” Id. at p. 14. “And then I guess,
I don’t know, somebody panicked or something, and started
firing and then constant .22 fire.” Tape 15, p. 13. “We ran out.
Got into a car. We just took off.” Tape 10, p. 14.
Doody claimed they intended only to conduct a “war
game” to see if they could surround the building without set-
ting off the security system, but his co-conspirators then ran-
sacked the living quarters and gathered the victims. Doody
maintained that someone else suggested they eliminate the
witnesses after one of the monks recognized Gonzalez, and
that he was sent outside the building to determine whether
anyone could hear shots from inside when the nine killings
occurred. Garcia, who was being separately questioned the
same night, claimed it was Doody who insisted they “leave no
witnesses,” and Doody who pulled the trigger.
B
Based on their interlocking confessions and other incrimi-
nating evidence, Doody and Garcia were charged with rob-
bery and murder. Early in pretrial proceedings, Doody moved
3030 DOODY v. SCHRIRO
to suppress his confession.1 The trial court conducted an
exhaustive evidentiary hearing, lasting ten days, to determine
whether Doody’s confession was voluntary. The officers who
questioned Doody all testified, and the court heard all thirteen
hours of audio tape from the interrogation. Doody did not take
the stand to contradict the officers. The court considered all
of the relevant circumstances, credited the testimony of the
detectives as to Doody’s demeanor, and concluded Doody
confessed voluntarily, after knowingly and intelligently waiv-
ing his constitutional rights. Doody, 930 P.2d at 445.
Doody proceeded to trial, which lasted thirty-four days.
The jury heard all thirteen hours of Doody’s interrogation as
well as other corroborating evidence linking him to the crime.
That evidence included incriminating statements Doody made
to friends after the murders, his fingerprints located on loot
taken from the temple, the fact that he made a substantial cash
down-payment to purchase a car shortly after the crime (dur-
ing which $2,650 in cash was taken), and Garcia’s accomplice
testimony. The jury was instructed that Doody’s statement
was not voluntary if it resulted from his “will being overcome
by a law enforcement officer’s use of any sort of violence,
coercion, or threats, or by any direct or implied promise, how-
ever slight.” Id. at 448.
The jury convicted Doody on every count. The jury found
Doody liable for the nine murders on a theory of felony mur-
der rather than premeditated murder. The trial court sentenced
Doody to nine consecutive life terms for the murders and
eleven additional prison terms on the remaining felony
counts.
1
Garcia also moved to suppress his own confession, but thereafter
entered into a plea agreement in which he pled guilty to nine counts of
first degree murder and one count of burglary. He also agreed to testify
against Doody. In exchange, the prosecution agreed not to seek the death
penalty against Garcia.
DOODY v. SCHRIRO 3031
Doody appealed his convictions, arguing, inter alia, that
the trial court erred in failing to suppress his confession. He
claimed the totality of the circumstances rendered the confes-
sion involuntary and that the Miranda warnings were inade-
quate. The Arizona Court of Appeals rejected both arguments
in a lengthy reasoned opinion. It considered all of the circum-
stances surrounding Doody’s confession, including his age
and intelligence, the length of the interrogation, the absence
of a parent, and the tone and tactics employed by the detec-
tives throughout the interrogation. The court concluded the
tactics were not unduly oppressive and Doody had confessed
voluntarily. Id. at 446-48.
The Arizona Court of Appeals also rejected Doody’s argu-
ment that the warnings were inadequate. Upon review of the
audiotape of the warnings, the signed written waiver, and the
interrogating officers’ testimony regarding Doody’s demea-
nor, the court found “the officers explained [Doody’s] rights
in a manner appropriate for his age and apparent intelligence.”
Id. at 449. The Court of Appeals affirmed Doody’s convic-
tions.
The Supreme Court of Arizona denied review and the
Supreme Court of the United States denied Doody’s petition
for a writ of certiorari. The United States District Court for
the District of Arizona denied Doody’s subsequent federal
habeas petition. A three-judge panel of our court, including
two members of today’s majority, reversed, holding the state
courts were not objectively unreasonable in concluding the
Miranda warnings were adequate, but ruling that Doody’s
confession was nonetheless involuntary because it lasted too
long. The panel granted habeas relief. We granted rehearing
en banc.
II
Contrary to the majority’s belief, the “elephant in the court-
room” here is the standard of review. Wong v. Belmontes, 130
3032 DOODY v. SCHRIRO
S. Ct. 383, 390 (2009). Under AEDPA, we may not grant
habeas relief unless the state court decision “was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or “was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d). A state court’s deci-
sion is an “unreasonable application of . . . clearly established
law” only if it is “objectively unreasonable.” Williams v. Tay-
lor, 529 U.S. 362, 409 (2000). A federal court may not issue
a writ of habeas corpus merely because it concludes “in its
independent judgment” that the state court erred. Id. at 411.
Nevertheless, the majority reviews the record as though it
were the initial finder of fact or reviewing a federal conviction
on direct appeal. The majority pays mere lip service to
AEDPA and then proceeds as though it does not exist.
III
Miranda v. Arizona, 384 U.S. 436, 467 (1966), requires
that an accused be “adequately and effectively apprised of his
rights.” When considering the adequacy of a Miranda advise-
ment, “[t]he inquiry is simply whether the warnings reason-
ably ‘conve[y] to [a suspect] his rights as required by
Miranda.’ ” Duckworth v. Eagan, 492 U.S. 195, 202 (1989)
(quoting California v. Prysock, 453 U.S. 355, 361 (1981) (per
curiam)).
The warnings in this case were delivered as follows while
Doody had the written warnings in the Appendix before him
on the table:
Detective Riley: Ah, what this is, is that ah you have
the right to remain silent and ah, and what it states
is that this means that you do not have to talk to me
or answer any questions about ah, the matter that
we’re going to discuss with you, okay. You can be
DOODY v. SCHRIRO 3033
quiet if you, if you wish. Okay, did you understand
that?
Doody: Uh-huh.
Detective Riley: Okay, ah, as we go here, they ah,
they ask that you initial ah, here indicating that I
read it to you and that you understand it. Ah, so if
you could ah, as we go, I will go ahead and just have
you initial in the box whether you do or don’t.
Doody: Okay.
Detective Riley: Okay. And the next one is that any-
thing that you say can and will be used against you
in a court of law and what this means is that any-
thing that you tell me, I can use later against you in
court and a court of law is a place where a judge will
decide whether ah, you did something or whether
you didn’t do something, okay. And a judge is like
an umpire in a baseball game. He decides whether
you have acted in a right or wrong way, okay. Ah,
if you did something wrong ah you may be punished
and if you didn’t you won’t be punished, okay. Do
you understand all of that?
Doody: Uh-huh.
Detective Riley: Okay, if you could just initial there.
Okay, and the next one states that you have the right
to have an attorney present prior to and during ques-
tioning, and what that means is that if you want one,
you’re allowed to have a lawyer here before and dur-
ing you know my questions to you, okay. And then
an attorney is a lawyer who will speak for you and
help you concerning the crime or any kind of offense
that ah we might think that you or somebody else
was involved in, if you were involved in it, okay.
3034 DOODY v. SCHRIRO
Again, it [sic] not necessarily mean that you are
involved, but if you were, then that’s what that
would apply to okay. And do you understand that?
Doody: Yeah.
Detective Riley: Any questions?
Doody: No.
Detective Riley: Okay. Okie doke.
Doody: Oh yeah what’s this for?
Detective Riley: Ah, okay I’ll, again I’m gonna go in
and, and explain some things to you. Ah, in the next
one states that if you cannot afford an attorney,
you’d have the right to have one appointed for you
prior to questioning okay, and what this means, is if
you do not have the money to get a lawyer ah, if you
wished ah, one will be given to you free of charge
before any questions and things like that, okay. Do
you understand that?
Doody: Uh-huh.
After delivering the Miranda warnings, Detective Riley asked
Doody if he wished to have a parent or guardian present.
Doody said he did not want a parent present and then
expressly agreed to speak with the officers. Before asking any
questions, Detective Riley confirmed that Doody was willing
to talk, that he did not want a parent or an attorney present,
and that Doody understood he could stop the interrogation “at
any time”:
[I]f . . . you have no problem with ah talking to
myself and David here right now, with ah, without
anybody else present or an attorney, or your parents,
DOODY v. SCHRIRO 3035
or, or anyone ah, then as I said, we have some things
we’d like to ask you and we’d like to do that. Ah,
and if you have no problem with that, we’d like to
talk to you about that. Ah, but if you want to then ah,
to stop at any time, that’s something you can do as
well. Okay. Do you have any questions at all about
any of these things I’ve, I’ve explained to you?
Doody replied, “No.”
Following its pre-trial hearing, the trial court ruled these
warnings were adequate. The Arizona Court of Appeals
affirmed the trial court and found the warnings were delivered
“in a clear and understandable manner” and “the officers
explained [Doody’s] rights in a manner appropriate for his
age and apparent intelligence.” Doody, 930 P.2d at 449. This
factual finding fits easily within the bounds of federal law as
determined by the Supreme Court of the United States. See 28
U.S.C. § 2254(d).
The Supreme Court has not decided a case with facts “ma-
terially indistinguishable” from the facts before us. Williams,
529 U.S. at 406. It has, however, clearly instructed us how to
approach our adequacy analysis. The Supreme Court has
never insisted that Miranda warnings be given verbatim as set
forth in that opinion. Duckworth, 492 U.S. at 202; United
States v. Mejia, 559 F.3d 1113, 1117 (9th Cir. 2009). Indeed,
the Court has repeatedly cautioned against rigid requirements
as to the form of Miranda warnings.
In California v. Prysock, the suspect was advised that he
had the right to a lawyer prior to and during questioning; and
that he had the right to a lawyer appointed “at no cost to your-
self;” but was not advised that he had a right to an appointed
lawyer prior to and during questioning. 453 U.S. at 356-57.
The California Court of Appeal ruled that Prysock’s state-
ments must be suppressed because he was not advised of his
precise right to have a lawyer appointed prior to questioning.
3036 DOODY v. SCHRIRO
Id. at 358-59. The United States Supreme Court reversed in
a per curiam opinion, noting: “[n]othing . . . suggests any
desirable rigidity in the form of the required warnings.” Id. at
359. Miranda did not require a “talismanic incantation . . . to
satisfy its strictures.” Id. The Court required only a “fully
effective equivalent” to the warnings spelled out in Miranda.
Id. at 360 (quoting Miranda, 384 U.S. at 476).
In Duckworth v. Eagan, the Supreme Court found a mis-
leading warning to be a fully effective equivalent of the
Miranda warnings. 492 U.S. at 205. There, the suspect was
advised: “You have this right to the advice and presence of a
lawyer even if you cannot afford to hire one. We have no way
of giving you a lawyer, but one will be appointed for you, if
you wish, if and when you go to court.” Id. at 198 (original
emphasis). The Seventh Circuit concluded the warnings were
invalid, explaining that reasonable citizens might understand
the statement to “impl[y] that if the accused does not ‘go to
court,’ i.e., the government does not file charges, the accused
is not entitled to counsel at all.” Eagan v. Duckworth, 843
F.2d 1554, 1557 (7th Cir. 1988).
Notwithstanding the false implication, the Supreme Court
reversed the Seventh Circuit and found the warnings ade-
quate. Although the warnings might have been confusing to
a layman, it was technically correct as a matter of Indiana pro-
cedure. The Court cautioned, “[r]eviewing courts therefore
need not examine Miranda warnings as if construing a will or
defining the terms of an easement. The inquiry is simply
whether the warnings reasonably ‘conve[y] to [a suspect] his
rights as required by Miranda.’ ” Eagan, 492 U.S. at 203
(quoting Prysock, 453 U.S. at 361). It acknowledged that offi-
cers may routinely “inadvertently depart from routine prac-
tice, particularly if a suspect requests an elaboration of the
warnings.” Id. Because the warnings “touched all of the bases
required by Miranda,” the Supreme Court held Eagan’s con-
fession was admissible. Id.
DOODY v. SCHRIRO 3037
Despite these admonishments against rigid requirements for
administering Miranda warnings, the majority of our en banc
panel now concludes the state courts were “objectively unrea-
sonable” in finding the warnings adequate. It rests this conclu-
sion on two alleged defects in the warnings: first, “significant
deviations from the printed Miranda form and [Detective
Riley’s] repeated minimizing of the warnings’ significance,”
Opinion at 2980; and second, Detective Riley’s apparently
misleading explanation of the right to counsel.
Were we reviewing this case on direct appeal, each of these
might be legitimate grounds for debate. However, to interpret
these portions of the record de novo without any regard for
the state courts’ determinations, after the state trial court con-
sidered all of the evidence and watched the detectives testify,
ignores AEDPA.2 The majority insists that if we properly
apply AEDPA we succumb to a “temptation to abdicate our
responsibility on habeas review.” Opinion at 2981. However,
our responsibility on collateral habeas review is not to ask
how we see the evidence—which is what the majority does—
but to ask whether how the state courts viewed the evidence
is objectively unreasonable under clearly established federal
law. In this task we have neither a rubber stamp nor an eraser,
just a nuanced duty to recognize the distinct role of both state
courts and the federal system on habeas review.
2
The majority substitutes its judgment for that of the Arizona courts so
many times that it becomes second nature, and thus, almost unnoticeable.
Many times over the majority simply disagrees with the Arizona Court of
Appeals, but labels any interpretation contrary to its own “unreasonable.”
For example, the majority writes, “To the contrary, the audiotapes demon-
strate that the detectives’ relentless and uninterrupted interrogation of an
unresponsive juvenile was far from ‘courteous.’ ” Opinion at 2994. This
court cannot make that determination on habeas review under AEDPA.
The majority even reasons, “Any doubt regarding this matter is easily
resolved by listening to the audiotapes.” Id. Under AEDPA, it is not our
role to resolve “doubt” in the factual record and then conclude that the
state court was unreasonable not to see it our way.
3038 DOODY v. SCHRIRO
Because the Supreme Court has not spoken on closely anal-
ogous circumstances, we ask only whether the Arizona courts
reasonably applied the precedent available. The Supreme
Court has explicitly condoned deviating from the script. It
recognizes that officers may deviate from standard practice,
particularly when giving additional explanation. Eagan, 492
U.S. at 203. It was reasonable for the Arizona Court of
Appeals to interpret these cases as permitting some less-than-
perfect Miranda advisements.
The warnings Doody received are not a model of English
diction. They are nonetheless perfectly adequate to convey to
a young man his basic rights. The essential rights are easily
identifiable, and nearly all of the additional material clarifies,
rather than obfuscates. The warnings are even clearer when
heard on the audio tape, rather than read from the printed
record. The colloquial filler (“ah,” “like,” “and things,”
“okay,” etc.), which is distracting on the page, is largely fil-
tered out when heard by the average listener. Even those of
us who spend our days striking every unnecessary word from
our written work commonly make, and hear, statements of
less than perfect prose. We are nonetheless able to communi-
cate and understand serious ideas. Moreover, the written
warnings were simultaneously set before Doody and
expressly acknowledged by him to clarify any confusion. See
Appendix.
The gravity of Doody’s situation was also clear. One of
Miranda’s primary purposes is “to make the individual more
acutely aware that he is faced with a phase of the adversary
system—that he is not in the presence of persons acting solely
in his interest.” Miranda, 384 U.S. at 469. The warnings
given here certainly serve that purpose. What Doody
describes as “reassuring patter” intentionally designed to “ob-
scure and downplay” the importance of the warnings can be
reasonably interpreted as explanation designed to focus
Doody’s attention on what was being said. Doody knew from
the moment he got into the police car that the officers
DOODY v. SCHRIRO 3039
intended to question him about the murder weapon. Officer
Riley clearly told Doody “anything that you tell me I can use
later against you in court,” and told him a judge would decide
whether he had done something wrong, and if so, that he
would be punished. Doody was therefore “aware not only of
the privilege, but also of the consequences of forgoing it.” Id.
Although the explanations and tone were calibrated to put
Doody at ease, Officer Riley did not joke or make light of the
warnings. Compare with Cooper v. Dupnik, 963 F.2d 1220,
1228-29 (9th Cir. 1992) (en banc), overruled on other
grounds by Chavez v. Martinez, 538 U.S. 760 (2003).
Nor did Officer Riley’s explanation of the right to counsel
obscure the fundamental import of the right. After reading the
right to counsel, Riley said, “not necessarily meaning that you
are involved, but if you were, then that’s what [the right to
counsel] would apply to, okay?” The majority claims this
explanatory sentence “could be construed to suggest that one
would only ask for an attorney if he was guilty.” True. It
could be construed that way. However, it could also be con-
strued to reinforce that Doody was “faced with a phase of the
adversary system,” Miranda, 384 U.S. at 469, or construed as
having no effect on Doody’s understanding of his right to
counsel. A Miranda warning serves to make the individual
more acutely aware “that he is not in the presence of persons
acting solely in his interest.”3 Id. To that end, Officer Riley
explicitly stated that he was reading the warnings so that
Doody understood “some of the protections” he had, and that
“it’s for your protection.”4 Tape 1, pp. 2, 4 (emphasis added).
The Arizona courts heard the audio tape of the warnings, saw
3
Indicative of this notion is the very first sentence of the majority’s dis-
cussion of the warnings where it quotes Miranda’s requirement that the
prosecution demonstrate “the use of procedural safeguards effective to
secure the privilege against self-incrimination.” Opinion at 2979 (quoting
Miranda, 384 U.S. at 444) (emphasis added).
4
Given that the officers plainly said the warnings were for Doody’s pro-
tection, it is beside the point that they also said the warnings protected
them as well.
3040 DOODY v. SCHRIRO
Doody’s initials next to each warning on the juvenile Miranda
form, and listened to the testimony of the administering offi-
cers who testified that Doody “exhibited no signs of doubt or
confusion.” Doody, 930 P.2d at 449. The conclusion that “the
officers advised Doody of his Miranda rights in a clear and
understandable manner,” id., was not objectively unreason-
able.
Eagan addressed materially different facts from the ones
before us, but the state courts could reasonably conclude the
circumstances here counsel the same result. The warnings in
Eagan could have confused or misled a layman, but were
technically correct as a matter of Indiana procedure. The writ-
ten warnings Eagan received contained the same language and
would have done nothing to dispel any confusion. Eagan, 492
U.S. at 198. Here, the oral warnings themselves were stated
correctly, but one sentence of Officer Riley’s explanation
might have been open to misinterpretation. But unlike Eagan,
Doody was also looking at written warnings that clearly set
forth his constitutional rights. Doody’s receipt and acknowl-
edgment of the written warnings—which no one claims were
unclear or incorrect, in fact the concurrence admits “[t]here’s
nothing wrong with the written warnings,” Concurrence at
3024—alleviates any ambiguity or misinterpretation. See
Appendix.
A state court, earnestly trying to apply Eagan to the facts
at hand, could reasonably conclude these combined warnings
“touched all of the bases required by Miranda,” and “reason-
ably ‘convey[ed] to [a suspect] his rights as required by
Miranda.’ ” Eagan, 492 U.S. at 203. The Supreme Court has
not addressed a case in which an officer inadvertently makes
an ambiguous elaborating statement that conflicts with
otherwise-accurate spoken warnings. Nor has the Court indi-
cated what effect simultaneously acknowledged, written
warnings might have when the oral warnings are unclear. On
this basis alone, the Arizona Court of Appeals’ conclusion
was not objectively unreasonable. See Musladin, 549 U.S. at
DOODY v. SCHRIRO 3041
77 (“Given the lack of holdings from this Court regarding . . .
conduct of the kind involved here, it cannot be said that the
state court ‘unreasonabl[y] appli[ed] clearly established fed-
eral law.” (Quoting 28 U.S.C. § 2254(d)(1))).
The Arizona Court of Appeals reviewed all of the evidence
available and applied the correct federal standard in evaluat-
ing the adequacy of the warnings. It concluded the spoken and
written warnings reasonably conveyed Doody’s constitutional
rights. This application of Miranda, Prysock, and Eagan was
not objectively unreasonable. The majority’s contrary conclu-
sion rests on its de novo interpretation of the record and total
disregard for the state courts’ factual findings and reasoned
decisions, in contravention of AEDPA.
IV
Whether Miranda warnings were adequate and whether a
confession was voluntary are closely related inquiries.
“[F]ailure to give the prescribed warnings and obtain a waiver
of rights before custodial questioning generally requires
exclusion of any statements obtained. Conversely, giving the
warnings and getting a waiver has generally produced a vir-
tual ticket of admissibility.” Missouri v. Seibert, 542 U.S.
600, 608-09 (2004) (plurality opinion) (footnote omitted).
Because I would conclude the warnings were adequate, I pro-
ceed to consider the other circumstances relevant to the ques-
tion of voluntariness. Because the majority would conclude
the warnings were inadequate, its voluntariness analysis is
gratuitous, highlighting a dogged determination to quarrel
with the factual record as much as possible.
“[C]ourts look to the totality of circumstances to determine
whether a confession was voluntary.” Winthrow v. Williams,
507 U.S. 680, 693 (1993). Those circumstances include police
coercion; the length of the interrogation; its location; its conti-
nuity; and the defendant’s maturity, education, physical con-
dition, and mental health. Id. Issuance of valid Miranda
3042 DOODY v. SCHRIRO
warnings is a particularly weighty factor: “cases in which a
defendant can make a colorable argument that a self-
incriminating statement was ‘compelled’ despite the fact that
the law enforcement authorities adhered to the dictates of
Miranda are rare.” Berkemer v. McCarty, 468 U.S. 420, 433,
n.20 (1984).
To overcome the factual obstacles, the majority attempts to
paint Doody as a tender youth, lacking intellect or sophistica-
tion, younger than his chronological age of seventeen and
one-half years.5 But the facts as found here by the Arizona
judges do not support such a characterization. The Arizona
Court of Appeals reviewed the evidence presented at the ten-
day evidentiary hearing, including all thirteen hours of the
audio-taped interrogation. It made, or adopted from the trial
court, a number of express factual findings supporting its
legal analysis. These findings recite Doody’s age, education,
and school activities, including that he was six months from
the age of majority, maintained a B grade average, held the
position of commander of the ROTC Honor Guard and Color
Guard, was employed on the military base, and that he spoke
English fluently and displayed no signs of mental disability.
Doody, 930 P.2d at 445-46.
The Court of Appeals also concluded Doody was ade-
quately informed of his Miranda rights. It found that,
although the interview lasted nearly thirteen hours, Doody
admitted to borrowing the murder weapon after about two and
one-half hours and began to make a full confession after about
six hours. “The officers used a variety of approaches in ques-
tioning Doody” but maintained a “courteous, almost pleading
style of questioning during most of the interview.” Id. at 446.
5
Particularly indicative is the majority’s heavy reliance on the Supreme
Court’s 1948 opinion in Haley v. Ohio, 332 U.S. 596, 598 (1948), where
the Court characterized the suspect—questioned for five hours straight
and, as he maintained, beaten—as a fifteen-year-old African American
“lad” still living with his mother. Id.
DOODY v. SCHRIRO 3043
The officers allowed Doody to take bathroom breaks and
offered him food and drinks throughout the interrogation.6 Id.
The Court of Appeals also carefully noted the jury’s voluntar-
iness finding: “[i]n this case, as in all others, the jury was the
ultimate arbiter of voluntariness, and [was] free, in effect, [to]
disagree with the judge, and reject the confession.” Id. at 448
(quotation omitted, alterations in original).
The Arizona Court of Appeals identified the correct federal
constitutional standards, looking to “the totality of the circum-
stances surrounding the confession and determin[ing] whether
the will of the defendant has been overborne.”7 Id. at 445. The
Court of Appeals also noted that juvenile confessions require
the “ ‘greatest care,’ ” and proceeded to “ ‘evaluate whether
police conduct was coercive in the context of a juvenile con-
fession by carefully scrutinizing not only the external circum-
stances under which the juvenile was questioned but also the
juvenile’s reasonably apparent cognitive abilities.’ ” Id. (quot-
ing State v. Jimenez, 799 P.2d 785, 790 (Ariz. 1990) (citing
In re Gault, 387 U.S. 1, 55 (1967)).
Applying this standard to the facts found above, the Court
of Appeals concluded the confession was voluntary. It did not
make this determination lightly or casually. The court noted
6
The majority faults the officers because according to its interpretation
of the transcript the first break comes nine hours into the interview. Opin-
ion at 2991. Yet, the officers paused questioning less than four hours into
the interview to offer Doody something to drink and a bathroom break. At
the end of Tape 3, Detective Riley asks, “Are you a little thirsty?” Doody
responded, “Not quite, no.” Detective Riley then states, “You sure? You
look like you’re a little bit thirsty, you want to go to the bathroom or any-
thing?” Doody states, “No.” Detective Riley then ensures, “You sure?
Okay.” The majority’s suggestion that the officers were insensitive to
Doody’s need for relief throughout the interrogation is belied by this
record.
7
The majority inexplicably asserts the state court unreasonably applied
federal law by failing to weigh “the totality of the circumstances.” Opinion
at 2997.
3044 DOODY v. SCHRIRO
each of the most disturbing circumstances and cited specific
facts that counter-balanced those concerns. The “troublesome
length” of the interrogation was offset by the fact that Doody
had admitted after only two and one-half hours that he had
possessed the murder weapon and confessed to participating
in the temple robbery approximately four hours later. Id. at
446. The interrogation lasted through the night, but the audio
tapes confirmed the officers’ testimony that Doody did not
seem overly tired or distraught. Id. The officers engaged in
numerous interrogation techniques, which the trial court char-
acterized as “aggressive, energetic [and] forceful,” id., but
they were not egregious or beyond the bounds of federal law,
id. at 447-48.
Doody did not have a parent present, but, as the court
noted, he had said he “did not care” whether his parents were
there and agreed to speak to the detectives alone. Id. at 446.
He was also living on his own with friends, not his family. On
the basis of this extensive and thoughtful analysis, the Ari-
zona Court of Appeals concluded the confession was volun-
tary. As Chief Judge Kozinski notes in his concurrence, “This
is precisely the kind of debatable application of a ‘general
standard’ where finality and respect for the independent judg-
ment of the state courts counsels the highest deference on fed-
eral habeas review.” Concurrence at 3017-18 (citing Knowles,
129 S. Ct. at 1420).
The majority cannot point to any significant fact or circum-
stance that the Arizona Court of Appeals failed to consider in
reaching this conclusion. The majority claims Doody’s age is
of “critical importance.” Of course it is important. That is why
the state courts explicitly considered it. Doody, 930 P.2d at
445 (noting Doody’s age and reciting the correct legal stan-
dard for review of juvenile confessions). The Court of
Appeals noted several facts showing Doody was mature for
his age, including that he commanded the ROTC Honor
Guard and Color Guard and held a job at the Luke Air Force
Base commissary, id.; evidence in the record further showed
DOODY v. SCHRIRO 3045
that Doody was the oldest of four children, lived in an apart-
ment emancipated from his parents, signed his apartment
lease for himself and his roommates, bought two cars on his
own, and participated in the Civil Air Patrol, which com-
ported with his plans for college and possibly joining the Air
Force or Navy as a pilot.
The Court of Appeals also discussed the possibility of
police coercion, id. at 447-48; the length of the interrogation,
id. at 446; its continuity, id. (noting that the interrogation
lasted thirteen hours without significant breaks but also that
the officers “offered Doody food and drinks and accommo-
dated his requests to use the restroom”); and Doody’s matu-
rity, education, physical condition, and mental health, id. at
445-46 (discussing Doody’s education, grade average, school
activities, that there was “no indication of any mental disor-
der,” and condition during the interrogation).8 See Winthrow,
507 U.S. at 693 (requiring consideration of police coercion,
the length of the interrogation, its location, its continuity, and
the defendant’s maturity, education, physical condition, and
mental health). Of course, the Court of Appeals also devoted
an entire section of the opinion to the Miranda warnings.
Doody, 930 P.2d at 448-49.
The state court correctly applied federal law to its factual
conclusions. Each relevant circumstance, and many combina-
tions of similar circumstances, have been addressed by the
Supreme Court and circuit courts of appeal,9 and the resulting
8
The only factor the Court of Appeals apparently omitted was the loca-
tion of the interrogation. Other than noting the interview took place at the
police station, the state court did not describe the physical surroundings.
If anything, this factor would cut in favor of voluntariness. In contrast to
a typical stark interrogation room, Doody’s interrogation took place in
what had been the office of a Maricopa County attorney, roughly ten feet
by eighteen feet in size, well-lit, with carpeted floors and padded chairs.
The officers did not lock the door.
9
“While circuit law may be ‘persuasive authority’ for purposes of deter-
mining whether a state court decision is an unreasonable application of
Supreme Court law, only the Supreme Court’s holdings are binding on the
state courts and only those holdings need be reasonably applied.” Clark v.
Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003) (internal citations omitted).
3046 DOODY v. SCHRIRO
confessions held voluntary. We have repeatedly held a sus-
pect’s minor age and the absence of a parent do not make a
confession presumptively involuntary. See Juan H. v. Allen,
408 F.3d 1262, 1273 (9th Cir. 2005) (fifteen-year-old sus-
pect’s confession voluntary though police implored him to
cooperate and misrepresented legal implications of admitting
involvement); United States v. Doe, 155 F.3d 1070, 1075-76
(9th Cir. 1998) (en banc) (seventeen-year-old suspect’s
Miranda waiver and confession were voluntary, even though
his parents were not present, where juvenile did not appear to
be intoxicated, was not handcuffed, did not have trouble
understanding the questions, the investigating officers did not
make any threats or promises of any kind, and juvenile never
asked that his parents be notified or that they be present).
Federal courts have also held lengthy interrogations are not
per se coercive. See Clark v. Murphy, 331 F.3d 1062, 1073
(9th Cir. 2003) (defendant’s confession was voluntary though
he had been held and intermittently questioned in a small
room for eight hours); Jenner v. Smith, 982 F.2d 329, 334 (8th
Cir. 1993) (six or seven hour questioning not coercive);
United States v. Lehman, 468 F.2d 93, 101 (7th Cir. 1972)
(“vigorous” eight hour questioning with few breaks did not
make confession involuntary). “Even if we assume that the
interrogation lasted all day . . . coercion typically involves far
more outrageous conduct.” United States v. Haswood, 350
F.3d 1024, 1028 (9th Cir. 2003).
The majority attempts to distinguish these cases as not
involving both a seventeen and one-half year old suspect and
a thirteen-hour interview. However, the Supreme Court has
not addressed a case with facts such as those presented here.
The majority does not claim that the Court has, yet it never-
theless concludes that the Arizona Court of Appeals, not only
incorrectly, but unreasonably applied nonexistent Supreme
Court precedent. Such a holding is not only violative of
§ 2254(d), but is also wholly irrational. While a right may be
clearly established even without a Supreme Court case
DOODY v. SCHRIRO 3047
addressing materially indistinguishable facts, the majority
cannot point to a single case that would have put the Arizona
Court of Appeals on notice of a per se rule that a seventeen
and one-half year-old defendant cannot make a voluntary con-
fession six hours into a thirteen-hour interview.
In fact, the case that serves as the backbone of the majori-
ty’s attempt to refute this dissent, Haley, 332 U.S. at 600, is
readily distinguishable. In Haley, the defendant was a fifteen-
year-old African American “lad” in 1945 Ohio, id., arrested
at his home where he lived with his “closest friend—his
mother,” id., taken to police headquarters, reportedly beaten,
denied contact with his mother, and “not advised that he was
not obliged to talk, that it was his right if he chose to say not
a word, nor that he was entitled to have the benefit of counsel
or the help of his family,” id. at 604. The chief of police even
“admitted that while he knew the boy ‘had the right to remain
mute and not answer any questions,’ he did not know that it
was the duty of the police to apprise him of that fact.” Id.
Here, valid pre-printed Miranda warnings were read to
Doody verbatim before the disputed explanations; the officers
did not beat Doody; Doody was held for thirteen hours rather
than “days,” id.; the officers expressly asked Doody if he
wanted his parents present; the officers knew, and advised
Doody, that he had the right to remain silent; and most impor-
tantly, Doody was not a fifteen-year-old “lad” living with his
closest friend—his mother—but was instead a seventeen and
one-half year-old commander of the ROTC Honor Guard liv-
ing independently of his parents with his closest friend—the
provider of the murder weapon—Rolando Caratachea.10
10
We would not be the first circuit to distinguish Haley on such bases.
See United States ex rel. Hayward v. Johnson, 508 F.2d 322, 326 (3rd Cir.
1975) (distinguishing on the basis that suspect was “informed of his right
to remain silent”), overruled on other grounds by Patterson v. Cuyler, 729
F.2d 925 (3rd Cir. 1984); Rogers v. Quarterman, 555 F.3d 483, 495 (5th
Cir. 2009) (distinguishing on the basis that suspect was not “subjected to
3048 DOODY v. SCHRIRO
The majority argues that the Arizona Court of Appeals
should have been mindful of the “tender age” of Doody, just
as the Supreme Court was mindful of the “tender age” of
Haley. Notwithstanding the materially distinguishable facts of
the two cases, the Arizona Court of Appeals did expressly
consider Doody’s age. Doody, 930 P.2d at 449. “More to the
point, the question is not whether a state court could plausibly
extend Haley to this fact pattern, a point we need not decide;
the question is whether the [state] courts acted unreasonably
in declining to extend this pre-Miranda precedent here. They
did not.” Jackson, 525 F.3d at 435.
Nor were the Arizona courts required to find “outrageous
conduct” in the officers’ interrogation tactics. “The policeman
is not a fiduciary of the suspect. The police are allowed to
play on a suspect’s ignorance, his anxieties, his fears, and his
uncertainties; they just are not allowed to magnify those fears,
uncertainties, and so forth to the point where rational decision
becomes impossible.” United States v. Rutledge, 900 F.2d
1127, 1130 (7th Cir. 1990). Absent physical coercion, police
are permitted to engage in a variety of psychologically coer-
cive interrogatory tactics. See Haynes v. Washington, 373
U.S. 503, 514-15 (1963). The officers here employed most of
them: the good cop/bad cop routine, lecturing on the impor-
tance of telling the truth, appeals to Doody’s courage and
honor, urging him to act like a man, advising him that other
participants were talking and pointing fingers at Doody,
expressing concern for the safety of Doody’s family, and
plain dogged persistence in their questioning.
These techniques are not new. Nor are they unconstitu-
tional. For instance, police may encourage a suspect to coop-
physical abuse” and was “detained for a period of hours rather than
days”); Jackson v. McKee, 525 F.3d 430, 435 (6th Cir. 2008) (distinguish-
ing on the basis that suspect “by contrast, was older (17 years old)”); Har-
daway v. Young, 302 F.3d 757, 763 (7th Cir. 2002) (distinguishing on the
basis that suspect “was held for less than one day rather than three”).
DOODY v. SCHRIRO 3049
erate and imply the suspect will be treated leniently for doing
so. See Rutledge, 900 F.2d at 1128, 1130, 1131 (finding con-
fession voluntary where police made “not quite truthful”
statement that “all cooperation is helpful,” though confession
actually exposed Rutledge to a heavier sentence). This is true
even when the suspect is a juvenile. We have upheld voluntar-
iness findings where officers implored a fifteen-year-old sus-
pect to cooperate and “misrepresented the serious potential
legal consequences [the suspect] would face were he to admit
involvement.” Juan H., 408 F.3d at 1273. “It is not enough,
even in the case of a juvenile, that the police ‘indicate that a
cooperative attitude would be to [the] benefit’ of an accused
unless such remarks rise to the level of being ‘threatening or
coercive.’ ” Id. (quoting Fare v. Michael C., 442 U.S. 707,
727 (1979)).
Deception is also a permitted tactic. “Ploys to mislead a
suspect or lull him into a false sense of security that do not
rise to the level of compulsion or coercion to speak are not
within Miranda’s concerns.” Illinois v. Perkins, 496 U.S. 292,
297 (1990). “ ‘[T]rickery is not automatically coercion.
Indeed, the police commonly engage in such ruses as suggest-
ing to a suspect that a confederate has just confessed or that
police have or will secure physical evidence against the sus-
pect.’ ” United States v. Crawford, 372 F.3d 1048, 1061 (9th
Cir. 2004) (quoting United States v. Byram, 145 F.3d 405,
408 (1st Cir. 1998)); see also Frazier v. Cupp, 394 U.S. 731,
739 (1969) (holding that confession was voluntary even
though the officer falsely told the suspect that his co-
conspirator had confessed to the crime).
Persistent questioning must be permissible, for “[f]ew crim-
inals feel impelled to confess to the police purely of their own
accord, without any questioning at all.” Miller v. Fenton, 796
F.2d 598, 604-05 (3d Cir. 1986) (citing Stein v. New York,
346 U.S. 156, 186 (1953) (“Of course, these confessions were
not voluntary in the sense that petitioners wanted to make
them or that they were completely spontaneous, like a confes-
3050 DOODY v. SCHRIRO
sion to a priest, a lawyer, or a psychiatrist. But in this sense
no criminal confession is voluntary.”), overruled on other
grounds by Jackson v. Denno, 378 U.S. 368, 391 (1964)); see
also Haynes, 373 U.S. at 514-15 (“Of course, detection and
solution of crime is, at best, a difficult and arduous task
requiring determination and persistence on the part of all
responsible officers charged with the duty of law enforce-
ment. And, certainly, we do not mean to suggest that all inter-
rogation of witnesses and suspects is impermissible. Such
questioning is undoubtedly an essential tool in effective law
enforcement.”). Although the officers were persistent, they
were not coercive, and the Arizona courts reasonably con-
cluded Doody’s “confession [was] the product of an essen-
tially free and unconstrained choice by its maker.”
Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973).
Contrast the circumstances of Doody’s interrogation with
other Supreme Court cases finding truly coercive circum-
stances. See, e.g., Mincey v. Arizona, 437 U.S. 385, 396-402
(1978) (suspect interrogated for four hours in intensive care
unit, with tubes in his throat and nose, heavily medicated,
after being shot, despite explicit request for counsel); Darwin
v. Connecticut, 391 U.S. 346, 347-49 (1968) (per curiam)
(suspect interrogated for 48 hours incommunicado while offi-
cers denied access to counsel); Greenwald v. Wisconsin, 390
U.S. 519, 519-21 (1968) (per curiam) (defendant, with a ninth
grade education, was questioned without Miranda warnings
for over eighteen hours and prevented from eating, sleeping,
and taking his medication); Beecher v. Alabama, 389 U.S. 35,
36-38 (1967) (per curiam) (officer fired rifle next to suspect’s
ear and said “If you don’t tell the truth I am going to kill
you”); Clewis v. Texas, 386 U.S. 707, 709-12 (1967) (suspect
was arrested without probable cause, interrogated for nine
days with little food or sleep, and gave three unwarned “con-
fessions” each of which he immediately retracted); Davis v.
North Carolina, 384 U.S. 737, 745-53 (1966) (defendant was
interrogated “daily” for sixteen days, during which no one
other than the police spoke to him, and during which he was
DOODY v. SCHRIRO 3051
fed an “extremely limited” diet); Reck v. Pate, 367 U.S. 433,
439-42, n.3 (1961) (mentally retarded youth interrogated
incommunicado for a week “during which time he was fre-
quently ill, fainted several times, vomited blood on the floor
of the police station and was twice taken to the hospital on a
stretcher”). It was entirely reasonable for the Arizona courts
to conclude Doody’s confession did not fall into this category.
In light of the Arizona courts’ extensive findings and care-
ful application of federal law, the best the majority can do is
to mischaracterize the state court findings and re-evaluate the
record. The majority first attacks the Court of Appeals’ find-
ing that Doody was “alert and responsive,” claiming he was
actually non-responsive and often silent.11 The state court
never said Doody spoke constantly or answered every ques-
tion. The Court of Appeals explicitly noted that “Doody did
not speak for long periods during the interrogation.” Doody,
930 P.2d at 447. The majority wants to interpret Doody’s fail-
ure to answer certain questions as “unresponsive.” The Ari-
zona Court of Appeals obviously viewed his failure to
immediately answer in a more sinister light; Doody could
have been thinking up a tale explaining his admission that he
was at the murder scene in a non-incriminatory fashion.
Doody ultimately stated that he was at the temple but outside
when the murders occurred.
The finding that he was “alert and responsive” was not
unreasonable, even in light of Doody’s silence, for there is
more to alertness than perpetual chatter. Doody could cer-
tainly have been pondering the consequences of truthfully
answering the detectives’ questions. Of course, silence may
be indicative of inattention or unresponsiveness, but visual
clues and physical demeanor must also be considered. The
11
The majority neglects to mention that Doody becomes talkative, forth-
coming, and almost chatty in the last several hours of the interrogation. He
provides most of the details of the crime with minimal prompting from the
officers.
3052 DOODY v. SCHRIRO
majority goes to great length to note that Doody sat in a chair
with a “straight, immobile back.” Opinion at 2991; see also
Opinion at 2987, 2998. If anything, this would bolster the
detectives’ observations as to Doody’s alert and responsive
demeanor. The audio tapes, though certainly better than a cold
transcript, cannot provide this information. Only the detec-
tives who interrogated Doody could provide that, and they
swore that Doody was “alert and responsive throughout the
interrogation and did not appear overtired or distraught.”
Doody, 930 P.2d at 446. Doody declined to testify at the evi-
dentiary hearing, so the record is devoid of direct evidence
contradicting the officers’ description. Id.
Because the trial court explicitly credited that testimony,
the majority commits reversible error in dismissing the state
court’s finding as an “unreasonable determination of the
facts.” The majority again misconstrues the limits of our
review under § 2254(d) in this respect. The majority argues
that “assuming that there was equivocal evidence of respon-
siveness, the Arizona Court of Appeals’ finding that no evi-
dence supported Doody’s claim was unreasonable.” Opinion
at 2994 (first and third emphases added). Yet, because “Con-
gress specifically used the word ‘unreasonable,’ and not a
term like ‘erroneous’ or ‘incorrect,’ a federal habeas court
may not grant relief simply because it concludes in its inde-
pendent judgment that the relevant state-court decision” was
erroneous or incorrect. Williams, 529 U.S. at 366. The major-
ity fundamentally alters our scope of review by ignoring this
distinction. See Brown, 551 U.S. at 10 (“By not according the
required deference, the [Ninth Circuit] Court of Appeals
failed to respect the limited role of federal habeas relief in this
area prescribed by Congress and by our cases.”).
The majority next deems unreasonable the finding that “the
audio tapes reveal a courteous, almost pleading style of ques-
tioning during most of the interview.” Doody, 930 P.2d at
446; Opinion at 2994. The majority reviews the tapes and
scolds that the officers’ tones were “far from pleasant.” This
DOODY v. SCHRIRO 3053
was no tea party. The state court did not treat it like one. The
officers were unquestionably persistent in seeking, and some-
times demanding, information. That is what we pay them to
do. But it is entirely accurate to say the officers were “courte-
ous, almost pleading” for “most of the interview” (emphasis
added). Finding a courteous tone for most of the interview
does not conflict with the fact that the officers were some-
times sarcastic, demeaning, and unpleasant.
For hours at a time, the officers pleaded, cajoled, and
implored in soft voices. Their questions were nearly inaudible
on the tape at some points. For several additional hours, par-
ticularly at the beginning and end of the interview, the offi-
cers asked questions in conversational tones. Even in the early
hours of the morning, when the officers were most demanding
and unpleasant, they did not scream or shout. They did not
threaten Doody in any way. They did not pound the table or
throw objects around the room. They did not put words in
Doody’s mouth as to how the murders had been planned or
committed. If we are going to say that mere persistence in
interrogation renders a confession involuntary, and that a sus-
pect’s will is overborne by insistently repeated questions, and
moreover that it’s objectively unreasonable for a court to
decide otherwise, then there is no rational stopping point in
our voluntariness analysis.12
12
The majority’s conclusion that the police “undoubtedly” used the
same interrogation techniques against Doody as they did in procuring the
Tucson Four’s confessions, Opinion at 2995, is remarkable, considering
the Court of Appeals found that Doody had waived that contention as part
of a due process claim. He convinced the trial court to admit the Tucson
Four’s confessions by arguing they were true and reasonably showed
someone else committed the crime. Doody, 930 P.2d at 449-50. The Court
of Appeals also found that Doody made “no [ ] showing” in state court
that the circumstances of the Tucson Four confessions were relevant to his
own, and that “the record disclose[d] substantial differences in approach
and questioners” between Doody’s and the Tucson Four’s interrogations.
Id. at 450-51. Doody fails to challenge these state court findings on
appeal, while the majority simply ignores them, again in disregard of
AEDPA.
3054 DOODY v. SCHRIRO
Indefatigable in its mischaracterization of the state court’s
findings, the majority next claims that, “contrary to the find-
ing of the Arizona Court of Appeals, Doody decidedly did not
admit to involvement in the temple murders after two and
one-half hours of questioning.” Opinion at 2996. The Court of
Appeals did not say Doody “admitted to involvement” after
two and a half hours. It said, “Doody admitted he had bor-
rowed Caratachea’s rifle at the time of the temple murders.”
Doody, 930 P.2d at 446. This is a reasonable finding of fact.
Doody said he borrowed the rifle “close to the end of June.”
The murders occurred in August. Considering the Court of
Appeals reviewed the case roughly five years later, “at the
time” reasonably describes the time frame. It is disingenuous
to re-write the state court’s findings in order to declare them
“patently unreasonable.” Opinion at 2996. Although not con-
clusive, the inculpatory admission that he possessed the mur-
der weapon before the temple invasion provided a strong
basis for the officers to believe Doody had some involvement
in the robbery and murders.
Finally, the majority faults the Court of Appeals for analyz-
ing “the individual circumstances of the interrogation without
weighing the totality of the circumstances.” Opinion at 2997.
Given that federal law requires state courts to examine a long
list of particular factors, this criticism is utterly confounding.
Had the state court merely alluded to a vast morass of evi-
dence and stated a summary conclusion, we might arguably
reverse for failure to explicitly consider all the relevant cir-
cumstances. The majority now implies that individual consid-
eration of each important factor is error. A state court
earnestly trying to follow our dictates might as well throw in
the towel.
V
The majority’s lengthy recital of the facts highlights the
fundamental error in its approach. Despite the prolific factual
recitation, the majority leaves key sentences, exchanges, and
DOODY v. SCHRIRO 3055
pages of transcript unaccounted for. The majority quips that
the dissent would “prefer that these audiotapes not see the
light of day.” Opinion at 3013, n.9. To the contrary, if the
majority is going to ignore AEDPA and parse the record, then
all of the transcripts should see the light of day, not just pre-
selected snippets. Rather than deferring to the reasoned deci-
sions of the Arizona state courts, the majority re-weighs the
facts, parses the transcript, and dismissively ignores the state
court findings. The opinion manifests a flagrant disregard of
our role as federal appellate judges and the comity enshrined
in AEDPA’s statutory commands.
The Arizona courts did everything we can demand of state
courts. The trial court held a ten-day evidentiary hearing
before concluding the Miranda warnings were adequate and
the confession was voluntary. More importantly, the jury
independently and necessarily concluded the confession was
voluntary and reliable in convicting Doody for his role in the
murders. The Arizona Court of Appeals affirmed this determi-
nation in a comprehensive, reasoned opinion. Its holding on
the facts presented fell squarely within the bounds of Supreme
Court precedent on voluntariness. In sum, sixteen Arizona
factfinders concluded Doody’s confession was voluntary. 28
U.S.C. § 2254(e)(1) cloaks those findings with a presumption
of correctness. Doody fails to meet his statutory burden to
rebut them by “clear and convincing evidence.” Id.
In violation of AEDPA, the majority adjusts the scales and
weighs the facts anew. This sort of appellate factfinding on
habeas review is contrary to the congressionally mandated
standard of review. It also creates unpredictability for habeas
petitioners, attorneys, and state and federal courts. “We have
been told before that objectively unreasonable means some-
thing more than we think the state courts were wrong. ‘[A]n
unreasonable application of federal law is different from an
incorrect application.’ ” Anderson v. Terhune, 516 F.3d 781,
800 (9th Cir. 2008) (en banc) (Tallman, J., dissenting) (quot-
ing Williams, 529 U.S. at 410). Such careless dismissal of rea-
3056 DOODY v. SCHRIRO
soned findings is demoralizing and insulting to the state
courts, eschewing the principle that “comity between state
and federal courts has been recognized as a bulwark of the
federal system.” Allen v. McCurry, 449 U.S. 90, 96 (1980).
With little more than a hat tip to the state courts’ extensive
findings, the majority nonetheless concludes these findings
were “objectively unreasonable.” The majority’s message to
our state courts is clear: no matter how carefully you decide
constitutional issues in criminal cases, no matter how well
you justify your opinions with evidence of record, we will
cast your work aside simply because we disagree. We should
instead give the reasonable findings of the Arizona courts the
deference to which they are entitled under AEDPA.
DOODY v. SCHRIRO 3057
Appendix