United States District Court, Northern District of California
December 20, 1999
TAMMY R. GARVIN, PETITIONER,
TEENA FARMON, RESPONDENT.
The opinion of the court was delivered by: Alsup, District Judge.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
In this federal habeas case brought by a state prisoner, the
issue concerns the voluntariness of a confession obtained after
detectives falsely suggested to the suspect that she could avoid
a murder prosecution by confessing to robbery and urged her to
"cooperate" before she consulted with a lawyer. The state courts
condemned this tactic but held its coercive force had attenuated
by the time of the non-counseled confession, three days later, a
confession used to convict petitioner of murder. In
this habeas proceedings, petitioner makes a powerful case of
coercion and involuntariness. Under the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), however, federal
district courts may no longer engage in de novo review of the
voluntariness of confessions. Under the deferential review
required by AEDPA, the petition must be denied.*fn1
Petitioner Tammy Garvin, then a 32-year old prostitute, knew
the murder victim, Rolf Neumeister. She had worked for him as a
waitress and had maintained an intermittent sexual relationship
with him. Knowing where Neumeister kept the restaurant's
proceeds, she suggested to Lucien Lemelle, her lover, that
Neumeister would be easy to rob. They drove to Neumeister's after
hours. She asked Neumeister to open the door. When he did,
Lemelle barged in and robbed Neumeister. Petitioner claims she
sat in the car while Lemelle killed Neumeister. Eventually
petitioner turned herself in to the police in Campbell,
On March 15, 1991, she was interrogated by Detectives Kern and
Lee. She was first given her Miranda rights. She repeatedly
asked for counsel and said she had nothing to say. The detectives
disregarded this and pressured her to talk. They made many
representations to her about what Lemelle (also under arrest) was
saying and tried to persuade her that she was headed for a murder
charge while Lemelle would be held only as an accessory. Calling
it "egregious" misconduct, the state court of appeal found the
detectives repeatedly invited her to admit to robbery and
materially understated the legal consequences of doing so,
conveniently leaving out the felony-murder rule:
The officers suggested to appellant that if she did
not cooperate she would be prosecuted for murder with
special circumstances and that Lemelle would be
prosecuted merely as an accessory. They told her,
falsely, that Lemelle had given them a statement
implicating her as the "heavy" and suggested that she
would vastly improve her legal situation if she
admitted participation — either in the robbery but
not the killing or by admitting the killing but
denying it was premeditated. Such an admission, they
stated, would "take away the special
circumstances." Their account of the law of murder
was materially misleading in omitting the
felony-murder doctrine. They claimed to have found
physical evidence (fingerprints and skin from under
Neumeister's fingernails) which they did not have.
They pleaded with appellant not to "take the fall"
but to tell them who did it and "give [them]
something to work with," let them "work for" her and
"get [her] out of jail." They told her talking to
them could only get her "out of trouble or lessen the
trouble" she was in.
They told appellant Lemelle's family would get him "a
good attorney," whereas she would not "have the means
to get past the Public Defender's Office. Which means
you're going to have to help yourself, cause there
ain't gonna be anybody out there helping you."
Interspersed throughout were "reminders" that nothing
appellant said could be used against her in court.
The first interrogation ended after a short break
when appellant insisted she had not slept for three
days and needed to sleep, but that she would call.
Kern left his business card with appellant.
DCA Opinion at 7 (Aug. 27, 1999).*fn2
The transcript of that interview includes passage after passage
wherein the detectives
misinformed petitioner concerning the legal consequences of
confessing to robbery:
Lee: You know that we can prove whether or not you
were there. Okay. That's a mute [sic, moot] point.
Number one, what we need to know is are you going
to take the fall all by yourself. And number two,
why did the old fart have to die for his money. Why
didn't you just rip him off, you've done it before
and you've gotten away with it. He didn't have to
die this time.
Kern: His checks.
Lee: That's something I would like to know.
Kern: Maybe it didn't even start off to be that, you
know. Maybe it was just a simple rip off. Maybe he
Lee: Maybe he went sideways. Came after you? Came
Kern: Yeah, if that's the case . . .
Lee: That explains things, that answers questions.
Kern: If that's the case, then that takes away the
special circumstances. To go there with the intent
just to steal.
Lee: And it turned to shit.
Kern: That's two different things. I don't know if
you want to help yourself in just that area. Cause
otherwise everybody is going to believe that you
went there to kill him to take his money. Okay.
That's what everybody is going to believe.
Lee: He's gonna come out of this smelling like a rose
more than likely. If he cooperates the way he um .
Kern: Has so far.
Lee: He indicated he wants to . . .
Garvin: Lou sounds so negative, come on.
Kern: He's happy with his role as an accessory, I'll
tell you that. That beats, that beats the other
option, which is the one you're in. He's not
looking to join you as a co-defendant. He's very
content with an accessory role versus a primary
role, which is why he has bail and you don't. Even
though his bail is outrageous, but that's why he's
got bail and why you don't. And he was not booked
Garvin: What was he arrested for?
Kern: Accessory, which basically means aiding and
abetting you. But not murder.
Kern: It's murder this time with a capital offense
possibly hanging over your head because of the
special circumstances. Take a couple of minutes and
just process all that. (Long pause.) You have a tub
that was scoured, but not all the way. (Short
pause.) And then there's the bathroom door.
Lee: The other thing is you know this is half of the
evidence we've got against you. We talked about
that it's your fault and you can take the whole rap
yourself. Whether you owe anybody that much. Are
you willing to face a capital offense as opposed to
just the normal bullshit.
Garvin: I didn't kill Rolf. (Crying.)
Kern: Well then . . .
Lee: But you were there.
Garvin: I did not kill Rolf.
Kern: Who did? What happened then if you didn't do
it? Even if you went there to rip him off, what
happened? Theft is one thing. In this case, it's no
Tr. of First Interrogation of Tammy Garvin, Mar. 15, 1991, 9-19
(reproduced at Augmented Clerk's Transcript ("ACT") 418-37).
In other words, the detectives suggested that by confessing to
robbery, she could avoid a murder charge. The police pointed
out, as shown, that she was facing a "capital" charge. At the
suppression hearing, Detective Kern testified that he knew this
was a false distinction under the felony-murder rule (Tr. of Mo.
to Suppress, Apr. 22, 1994 at 61). Detective Kern testified that
"it was his practice intentionally to violate the constitutional
rights of suspects when he `wanted to develop more evidence.'"
DCA Opinion at 11.
The detectives, moreover, urged that insisting on the right to
counsel would only worsen her situation:
Lee: Well, when you get your attorney, if you want to
talk to us, you call us, okay. Cause this is the
only time we are going to ask to talk to you.
Okay. And you can't get yourself in trouble.
Kern: All you can do is get yourself out of trouble
or lessen the trouble you're in. Yeah, cause you're
going to have to explain the scratches you have on
your face too.
(Tr. of First Interrogation, cited in full above, at 8.)
Kern: Well if you at least want the District Attorney
to have some kind of a, some kind of a[sic] idea,
for a lack of a better word, of how you perceived
the events took place. Your level of
cooperativeness, because there's two suspects, you
and Lou. If you want him to have some kind of a
yardstick that he can make decisions on, base the
decision on, other than what the physical evidence
tells him. Now is the opportunity to do that.
You'll hear it on this tape as you will, as your
attorney will. Again, reminding you that none of
what you could say or do say, if you do, can be
used against you. Now is the time to do it because
there won't be another opportunity with us or the
District Attorney. He can charge special
circumstances because of the robbery.
(Id. at 11-12.)
Lee: And (Lou's) going to have a good attorney, cause
I know his parents are gonna put everything up that
they need to get him a good attorney, and they're
gonna make sure he becomes a witness as opposed to
a co-defendant. And I don't think you're going to
have the means to get pass [sic] the Public
Defender's Office. Which means you're going to
have to help yourself, cause there ain't gonna be
anybody out there helping you.
(Id. at 13.)
Kern: Alright, then you're gonna have to help, you're
gonna have to help us help you. Do you understand?
It's not, it's not a . . . Tammy you don't have to
be a rocket scientist to figure this out. We can't
help you and you can't help yourself unless you
tell us what happened that night.
(Id. at 19) (all emphasis added).
Tired, petitioner asked to terminate the interview. She made no
incriminating statement on that occasion. She said that "when I
wake up . . . I'll call you."
Petitioner stayed in maximum security over the weekend. She
slept little and cried at times. She could use the phone between
1:00 a.m. and 2:00 a.m. She had no counsel or other visitors. On
Monday afternoon (the 18th), she was arraigned. The complaint
charged her with murder and Lemelle only as an accessory, just as
anticipated by the detectives. The state court of appeal stated:
She [the deputy public defender] received the
complaint and waived arraignment while announcing
that the public defender's office represented Lemelle
and would declare a conflict in appellant's case. The
matter was set for entry of a plea and identification
of counsel three days later, at the same time as
Lemelle's arraignment. As Kern had foretold, the
complaint charged appellant with murder and Lemelle
with being an accessory. Kern was present in court
and made eye contact with appellant.
DCA Opinion at 8. Because the public defender
represented Lemelle, a conflict was declared and
counsel was not yet appointed for petitioner.
Back in jail, petitioner promptly sent word via a friend that
she wanted to see Detective Kern. He came to the jail and began a
taped interview at 5:05 p.m. He again advised her of her
Miranda rights and asked her if her request to see him was of
her "own free will," to which she said yes (Tr. of Second
Interrogation of Tammy Garvin, Mar. 18, 1994, at ACT 247-337).
She then confessed. During the confession, petitioner carried
forward the distinction between robbery and murder (see Petition
¶¶ 41-45). The state court of appeal summarized her confession:
Appellant admitted going with Lemelle to the
restaurant to rob Neumeister, but aside from getting
Neumeister to open the door, she denied any
involvement. She stated she waited in the car, but
when it "took too long," she went back to the
restaurant. The door was open. She went inside; there
was blood all over; and she saw Lemelle on top of
Neumeister in the bedroom. Neumeister said, "Jessica,
why? I was so good to you." She saw the money bag,
took it, and she and Lemelle left. She repeatedly
denied involvement in any struggle or assault on
DCA Opinion at 9.
The trial court suppressed the March 15 statement, although
there was little to suppress from that occasion, but not the
March 18 confession. Based thereon, petitioner was convicted of
first-degree murder (with special circumstances) and was
sentenced to life with no possibility of parole.*fn3
The state court of appeal held that the police had engaged in a
purposeful, persistent and glaring violation of petitioner's
Fifth Amendment rights. DCA Opinion at 10-12. The first
interrogation, which had been totally suppressed, was not the
issue. The problem concerned the second interrogation where the
confession occurred. The state court of appeal posed the issue as
The question for us is whether the misconduct made
the subsequent statement involuntary. We must
determine whether an effect carried forward from
Kern's and Lee's practices which included:
A. Disregarding appellant's repeated requests for
counsel (People v. McClary (1977), 20 Cal.3d 218,
226, 142 Cal.Rptr. 163, 571 P.2d 620);
B. Giving an account of the law of murder that was
materially misleading in omitting mention of the
felony-murder rule (People v. Cahill (1994),
22 Cal.App.4th 296, 315, 28 Cal.Rptr.2d 1) or special
circumstance felony-murder (People v. Pock (1993),
19 Cal.App.4th 1263, 1274-1275, 23 Cal.Rptr.2d 900);
C. Suggesting that a failure to cooperate would
result in a capital prosecution (People v. Jimenez
(1978), 21 Cal.3d 595, 613, 147 Cal.Rptr. 172,
580 P.2d 672) and implying that appellant could avoid a
charge of murder with special circumstances if she
admitted that she just went to the restaurant to
steal. The latter scenario is exactly what appellant
admitted in the second interview which was tantamount
to a confession of felony-murder (People v. Cahill,
supra, 22 Cal.App.4th at pp. 314, 315,
28 Cal.Rptr.2d 1);
D. Promising leniency via an array of tactics
(People v. Cahill, supra, 22 Cal.App.4th at pp.
311-316, 28 Cal.Rptr.2d 1), including: strongly
implying that appellant could reverse her and
Lemelle's positions if the District Attorney had her
statement, urging her to tell him and Lee what
happened so they would work "for" her and prove her
version of events (id. at p. 311, 28 Cal.Rptr.2d 1),
suggesting that her statement could benefit her
by changing her role from principal to accessory
(People v. McClary, supra, 20 Cal.3d at p. 229,
142 Cal.Rptr. 163, 571 P.2d 620), falsely
claiming they had a statement from Lemelle placing
the onus on appellant and that they had physical
evidence that did not, in fact, exist (People v.
Cahill, supra, 22 Cal.App.4th at p. 315,
28 Cal.Rptr.2d 1)["[e]ven collateral deception is material
if it is allied with matters amounting to a false
promise of leniency"]; suggesting that if appellant
did not make a statement, the authorities would have
no choice but to believe Lemelle (People v. Cahill,
supra, 22 Cal.App.4th at p. 315, 28 Cal.Rptr.2d 1);
and that the jury would regard her as a liar ("[y]our
denials are going to just look so bad. So bad")
[footnote omitted] (People v. Jimenez, supra, 21
Cal.3d at pp. 610-612, 147 Cal.Rptr. 172,
580 P.2d 672); E. "[R]emind[ing]" her over and over,
untruthfully, that whatever she said could not be
used against her at trial (People v. May (1988),
44 Cal.3d 309, 315, 320, 243 Cal.Rptr. 369,
748 P.2d 307); and finally,
F. "[D]emeaning the pretrial role of counsel" by
telling appellant that without "the means to get pass
[sic] the Public Defender's Office[,] . . . you're
going to have to help yourself, cause there ain't
gonna be anybody out there helping you." The
implication of Kern's advice is "inconsistent with
Miranda's stated purpose of making `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.'
[Citation.]" (Collazo v. Estelle (9th Cir. 1991),
940 F.2d 411, 418.)
DCA Opinion at 12.
The state court of appeal further held, given the misconduct on
March 15, that the prosecution had the burden to prove that the
challenged confession on March 18 was voluntary and not the
result of any form of compulsion or promise of reward. To assess
that issue, the court then turned to consideration of
"attenuating factors" or "dissipation," stating:
In determining the voluntariness of a subsequent
confession, we consider the age, sophistication,
prior experience with the criminal justice system,
and emotional state of the accused (People v.
Vasila (1995), 38 Cal.App.4th 865, 876,
45 Cal.Rptr.2d 355) as well as "whether (1) there was a
break in the stream of events sufficient to insulate
the statement from the effect of the prior coercion,
(2) it can be inferred that the coercive practices
had a continuing effect that touched the subsequent
statement, (3) the passage of time, a change in the
location of the interrogation, or a change in the
identity of the interrogators interrupted the effect
of the coercion, and [whether] (4) the conditions
that would have precluded the use of a first
statement [`particularly, the purpose and flagrancy
of the official misconduct' (Brown v. Illinois,
422 U.S. 590, 604, 95 S.Ct. 2254, 45 L.Ed.2d 416)] had
been removed." (Collazo v. Estelle, supra, 940 F.2d
at p. 421.)
DCA Opinion at 16.
The court found petitioner was wise in the ways of law
enforcement, a veteran of the criminal justice system with a
29-page rap-sheet and a prior prison term. She had skillfully
negotiated her surrender. She had stood on her rights during the
first session and remained virtually silent despite the police
misconduct, showing resolve, the court said, and an ability to
waive or not to, as she wished. She had been the one, not the
detectives, to initiate the second interview with Detective Kern.
And, she acknowledged that she was confessing and waiving her
Fifth Amendment rights voluntarily. No promises had been made,
she said (Tr. Second Interrogation, cited in full above, at 3).
Petitioner is now incarcerated at the Central California
Women's Facility in Chowchilla, California. Petitioner filed this
petition for writ of habeas corpus on April 13, 1999. Oral
argument was on November 10, 1999.
The central vice of the misconduct was to suggest that
petitioner could avoid a capital murder charge by confessing to
robbery, falsely understating the legal consequences of doing
so, while simultaneously discouraging her from exercising her
right to legal counsel. This prevented her from learning about
the felony-murder rule and from learning that confessing to
robbery was the same as confessing to murder. The misconduct came
after petitioner repeatedly insisted on a lawyer and on making no
All of the state judges in this case condemned the police
tactic and were unanimous that any statements taken at the first
interview were inadmissible. Once petitioner asked for counsel,
all questioning should have ceased. Edwards v. Arizona,
451 U.S. 477, 484, 101 S.Ct. 1880 (1981). Had Edwards been honored
and had petitioner herself voluntarily initiated the second
interview and knowingly, intelligently and freely waived counsel,
then she could have been properly interviewed. Ibid. On the
other hand, if coercive pressure was applied at the first
encounter, as it undisputedly was, then the prosecution had to
prove that the second interview was not the product of that
coercion, even though the accused initiated the second interview.
The state court of appeal so held correctly. Brown v. Illinois,
422 at 604, 95 S.Ct. 2254; Alderman v. United States,
394 U.S. 165, 183, 89 S.Ct. 961 (1969).*fn4
The state courts were right to condemn the police tactics as
coercive. To be sure, the Supreme Court has held that some types
of police deception are permissible, such as falsely stating that
a co-defendant has turned state's evidence. Frazier v. Cupp,
394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), or
installing government agents as cellmates to elicit statements,
Illinois v. Perkins, 496 U.S. 292, 296-97, 110 S.Ct. 2394, 110
L.Ed.2d 243 (1990). And, merely because an accused is unaware of
the potential adverse consequences of his statements does not
invalidate a confession. California v. Beheler, 463 U.S. 1121,
1125-26 n. 3, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). Nor do the
police have to divulge their ultimate areas of suspicion to a
Miranda-warned suspect. Colorado v. Spring, 479 U.S. 564,
575-577, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987).
Certain affirmative misrepresentations, however, have been held
by the Supreme Court to constitute unconstitutional deception and
In certain circumstances, the Court has found
affirmative misrepresentations by the police
sufficient to invalidate a suspect's waiver of the
Fifth Amendment privilege. See, e.g., Lynumn v.
Illinois, 372 U.S. 528, [83 S.Ct. 917, 9 L.Ed.2d
922] (1963) (misrepresentation by police officers
that a suspect would be deprived of state financial
aid for her dependent child if she failed to
cooperate with authorities rendered the subsequent
confession involuntary); Spano v. New York,
360 U.S. 315, [79 S.Ct. 1202, 3 L.Ed.2d 1265] (1959)
(misrepresentation by the suspect's friend that the
friend would lose his job as a police officer if the
suspect failed to cooperate rendered his statement
Id. at 576 n. 8, 107 S.Ct. 851. Although no decision has been
found in which the affirmative misrepresentation was, as here, an
intentional, false and material understatement concerning the
legal consequences of a confession suggested by the police, it
seems quite clear that such conduct is as coercive as the
affirmative misrepresentations in Lynumn and Spano. Were it
otherwise, the police could trick many unrepresented suspects
into making admissions in order to avoid the threat of a murder
prosecution. As early as 1897, the Supreme Court has held:
The test is whether the confession was "extracted by
any sort of threats or violence, [or] obtained by any
direct or implied promises, however slight, [or] by
the exertion of any improper influence."
Bram v. United States, 168 U.S. 532
, 542-43, 18 S.Ct. 183, 42
L.Ed. 568 (1897), approved in Brady v. United States,
397 U.S. 742
, 749-50, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Hutto v.
Ross, 429 U.S. 28
, 30, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976). The
"improper influence" here was falsely suggesting to the accused
that she could avoid a murder prosecution by confessing to
robbery, all the while pressuring her to talk before she had
counsel. These were "circumstances calculated to undermine the
suspect's ability to exercise free will." Oregon v. Elstad,
470 U.S. 298
, 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).
Had petitioner confessed on March 15, this habeas proceeding
would almost certainly never have arisen, for the confession
would plainly have been coerced and suppressed. See Collazo v.
Estelle, 940 F.2d 411 (9th Cir. 1991) (en banc); Henry v.
Kernan, 197 F.3d 1021 (9th Cir.). The difficulty is that three
days passed before the confession. The question, then, is whether
the initial misconduct, although it did not achieve the prize
immediately, must be deemed to have undermined the suspect's free
will and induced the subsequent confession. Most apt are
decisions involving coercive interrogations followed by later
confessions. One of the earliest such Supreme Court cases was
Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481
(1944), holding that the effect of earlier coercive questioning
had dissipated by the time of the confession later admitted in
evidence. The central inquiry was the extent of "the continuing
effect of the coercive practices." Id. at 602, 64 S.Ct. 1208.
The continuing effect was broken in Lyons by a change of
location, change of supervising custodian, change in interviewers
(from a sheriff to a warden with whom the accused was
acquainted). These changed circumstances, the Court held,
attenuated the prior coercion.
On the other hand, Clewis v. Texas, 386 U.S. 707, 711, 87
S.Ct. 1338, 18 L.Ed.2d 423 (1967), held a confession involuntary
based on a lack of warnings, a long period of custody, a
prolonged interrogation punctuated by a trip to the gravesite and
several polygraph tests, and a police interrogation intended not
merely to secure information but to elicit a signed confession to
the police theory of the case. There was a "continuing effect" —
"no break in the stream of events . . . sufficient to insulate
the statement from the effect of all that went before." Id. at
710, 87 S.Ct. 1338. See, generally, United States v. Patterson,
812 F.2d 1188, 1192 (9th Cir. 1987).
The "stream of events," the Court has held, can be interrupted
by Miranda warnings. Cf. Oregon v. Elstad, 470 U.S. 298, 310,
105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); Clewis, at 711, 87 S.Ct.
1338. Yet, even warnings, although important, may not always
suffice. In Westover v. United States, 384 U.S. 494, 16 L.Ed.2d
694 (1966), the Supreme Court held that even subsequent warnings
could not overcome the coercive effect of prior unwarned
in-custody interrogation in the same location with no break in
the interrogation process.
Finally, the flagrancy of the coercion matters. In Brown v.
Illinois, the Supreme Court ended its list of attenuation
factors with: "and, particularly, the purpose and flagrancy of
the official misconduct. . . ." 422 U.S. at 604, 95 S.Ct. 2254.
This, too, had been a factor in Clewis, where the Court stated,
"[T]he police testimony makes it clear that the interrogation was
not intended merely to secure information, but was specifically
designed to elicit a signed statement of the `truth' — and `the
police view of the truth' was made clear to petitioner." 386 U.S.
at 711-12, 87 S.Ct. 1338.*fn5
All of these factors must be considered without any particular
weighting under the "totality of the circumstances" test.
Clewis, 386 U.S. at 708, 87 S.Ct. 1338. Once coercion is found,
as here, the burden shifts to the prosecution to overcome a
presumption of taint, as the state court of appeal held. Brown
v. Illinois, 422 U.S. at 604, 95 S.Ct. 2254.
In the present case, some of the coercive elements of the
Friday interrogation attenuated before the confession three days
later. First, although the detectives had originally told
petitioner — untruthfully — "that whatever she said could not be
used against her at trial" (DCA Opinion at 13), that problem was
cured by the truthful admonition to her at the outset of the
second interview. And, the issue of implied leniency promises
faded with the subsequent acknowledgment by petitioner that no
"promises" had been made to her.
On the other hand, the more virulent violations of the Fifth
Amendment by the police were not so easily cured. These were:
• Giving petitioner an account of the law of murder
that was materially misleading in omitting mention
of the felony-murder rule;
• Suggesting that a failure to cooperate would result
in a capital prosecution and implying that the very
type of confession (to robbery) ultimately given
could avoid a charge of murder;
• Demeaning the pretrial role of counsel and urging
petitioner to "cooperate now" without the benefit
These factors loomed as large on Monday as they had on Friday.
The detectives had set a trap illuminating a false way out for
petitioner. The pressure was increased on Monday, at the
arraignment, when she learned that the charges unfolded just as
the detectives had foretold — she was charged with murder and
Lemelle was charged merely as an accessory. Detective Kern was
there in court to make eye contact, reminding her of all that had
gone before and his evident control over events. Nothing said or
done prior to the confession weakened the "continuing effect" of
the trap. The "purpose and flagrancy" of the official misconduct
was egregious, as the state court of appeal observed. Detective
Kern testified that it was his practice to violate the
constitutional rights of suspects when he wanted to obtain
information. The detectives intended to violate petitioner's
rights and knew they were doing so. They obtained the precise
confession they intended to get. All of these coercive factors
went uncured and militated against admissibility.
In its attenuation analysis, the state court of appeal
emphasized that petitioner was "profoundly" affected by the
murder charge and that she sought leniency: "Her decision was
made for a rational and self-interested purpose: leniency." The
court noted that petitioner emphasized throughout the Monday
interview: "I need that murder off of me, off of me. . . ." It
seems true that petitioner sought leniency in the sense that she
sought to avoid a murder charge but she sought to do so by
confessing to robbery. This factor actually cuts in the direction
opposite from that argued by the state court. The trap set by the
police was to lead the accused to believe that more lenient
treatment was available
by confessing to robbery — an illusion, of course, as the
subsequent murder conviction demonstrates. Petitioner was
pressured, based on the false statement of the law, to seek to
take away the murder charge by confessing to robbery, exactly as
the detectives had suggested. This Court concludes that the
pursuit of leniency, in the circumstances of this case,
demonstrates coercion, not voluntariness.
The "coup de grace," said the state court of appeal, was a
re-administration of Miranda before the confession. To be sure,
petitioner was told again that anything she said could be used
against her. But someone in her position, based on the false
representation of the legal consequences of the very confession
she did give, would have expected the confession to be used
against her in a robbery prosecution, not a murder prosecution.
The accused's objective was to avoid the murder charges ("I need
that murder off of me, off of me"). As the state court of appeal
elsewhere noted, "Kern's re-advisement of Miranda did not
include the warning that appellant should not rely on any
promises, representations of the law, or implications of
lenient treatment made in the earlier interview." DCA Opinion at
21 (emphasis added). The trap set by the police was
Miranda-proof, i.e., those warnings did not defuse the trap.
See Westover v. United States, 384 U.S. at 494, 86 S.Ct. 1602
The coercion/voluntariness inquiry is objective, not
subjective. It is more important objectively to assess the
totality of the circumstances under which the confession was made
to gauge its likely effect on someone like the accused than to
subjectively assess whether the specific suspect did or did not
succumb. Judge Kozinski summarized this requirement as follows:
The Supreme Court has told us that voluntariness is
not merely a fact-bound question whether this
particular suspect's confession is the product of
coercion, but also a legal question about whether the
techniques the police used were tolerable. As the
Court noted in Miller v. Fenton, 474 U.S. 104, 116,
106 S.Ct. 445, 452, 88 L.Ed.2d 405 (1985), "the
admissibility of a confession turns as much on
whether the techniques for extracting the statement,
as applied to this suspect, are compatible with a
system that presumes innocence and assures that a
conviction will not be secured by inquisitorial means
as on whether the defendant's will was in fact
overborne." The question before us, then, is whether
the technique used here risks overcoming the will of
the run-of-the-mill suspect, even if it did not
overcome the will of this particular suspect.
Collazo v. Estelle, 940 F.2d 411, 426 (9th Cir. 1991)
In sum, the prosecution had the burden to demonstrate
attenuation. Based on the historical facts set forth by the state
courts, petitioner has presented a powerful case, at least under
a de novo standard of review, that the prosecution did not
carry its burden. This brings us to the crux of the matter and
the question whether a federal district court may any longer
apply a de novo standard of review in habeas cases.
Prior to the Antiterrorism and Effective Death Penalty Act of
1996, whether a state prisoner's confession was voluntary or not
was a question of mixed law and fact to be reviewed de novo by
a federal district court. Miller v. Fenton, 474 U.S. 104, 106
S.Ct. 445, 88 L.Ed.2d 405 (1985). AEDPA, however, amended the
habeas jurisdiction of the district courts to require not only
deference to state court findings of fact, which was already
required by Section 2254, but also to require, as a further
limitation, deference to state court determinations of federal
constitutional law. In
relevant part, Section 2254(d)(1) now reads:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim —
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States.
This provision has limited the extent to which even the
jurisprudence of our own circuit may be consulted. As the Ninth
Circuit has stated:
This court, however, has unequivocally held that,
because of the 1996 AEDPA amendments, it is no longer
permitted to apply its own jurisprudence when
entertaining § 2254 habeas petitions, and must look
exclusively to Supreme Court caselaw in reviewing a
petitioner's claim. See Moore v. Calderon,
108 F.3d 261, 264 (9th Cir. 1997) ("[a] state court decision
may not be overturned on habeas review, for example,
because of a conflict with Ninth Circuit based law,
but rather a writ may issue only when the state court
decision is `contrary to, or involved an unreasonable
application of,' an authoritative decision of the
Supreme Court") ( quoting Childress v. Johnson,
103 F.3d 1221, 1224-26 (5th Cir. 1997)) [emphasis
Duhaime v. Ducharme, 193 F.3d 1126 (9th Cir. 1999).
Although the Ninth Circuit has not yet addressed the impact of
AEDPA on the standard of review of the voluntariness of a
confession, the Fifth Circuit has held that AEDPA has "altered
dramatically" the de novo standard of review established in
Miller v. Fenton before AEDPA. Carter v. Johnson,
110 F.3d 1098, 1108 (5th Cir. 1997). This conclusion seems inescapable,
given the statutory language.
In short, de novo review of any claim adjudicated on the
merits in state court is now impermissible under AEDPA. Delgado
v. Lewis, 181 F.3d 1087, 1091 n. 3 (9th Cir. 1999). Review is
limited to whether the state determination of voluntariness was
(i) an unreasonable application (or contrary to), (ii) clearly
established federal law, (iii) as determined by the Supreme
Court. The Ninth Circuit holds that "clearly established" law
under AEDPA is not limited to Supreme Court precedent factually
on point. Rather, it is enough to demonstrate that a state court
ruling of law defies the "force and logic" of the Supreme Court's
decisions. Ibid.; Davis v. Kramer, 167 F.3d 494, 500 (9th Cir.
The force and logic of the Supreme Court's caselaw, set forth
above, reduces to a "totality of the circumstances" test on
coercion. While the Supreme Court has permitted some police
deceptions and not others, it has not addressed the specific
police tactic here at issue. The state court here held that such
conduct, at least in combination with other misconduct, was
inherently coercive under the Fifth Amendment and that conclusion
seems clearly correct under the force and logic of the Supreme
Where, however, as here, there is a passage of time between the
coercion and the confession, the Supreme Court requires a
balancing of attenuation factors. The state court of appeal
recognized the correct set of factors, as demonstrated by its
opinion quoted above. In the present case, some of those factors
support voluntariness. There was a three-day passage of time. It
was petitioner, not any detective, who initiated the second
Petitioner was warned again. She stated that she called for
Detective Kern of her own free will. She stated that no promises
had been made to her. She was aware that the process was underway
to appoint a lawyer for her. She was a veteran of the criminal
justice system, hardened to the task of standing up to the
police. There is no evidence of mental impairment.
In light of these factors, honest and reasonable differences of
opinion may legitimately co-exist over how the factors weigh in
the balance and over whether or not confessions in such
circumstances should be deemed coerced, even if the prosecution
has the burden of proof. It is true that this Court disagrees
with at least two elements of the state court of appeal's
analysis, namely whether the Miranda warnings defused the
police trap and the significance of petitioner's desire to obtain
leniency. But even taking those adjustments into account, the
caselaw is not so clearly established that one could say that the
force and logic of the Supreme Court's jurisprudence dictated
suppression of the confession or that the state court's balance
of attenuation factors was unreasonable. The state decision was
thus not contrary to the force and logic of "clearly established"
Supreme Court caselaw. Nor was it an unreasonable application of
the Supreme Court's jurisprudence.
For many years, the federal district courts provided every
person convicted in a state court a right of de novo review to
insure that their convictions comported with certain federal
constitutional rights, a role that the Supreme Court simply could
not perform on direct review, given its workload. In AEDPA,
Congress sought to restrict that historic function of the
district courts and to entrust the protection of federal
constitutional rights, more exclusively, to state judges. Whether
or not that was wise policy is for others to decide. This is a
case in which AEDPA makes a difference. The petition for habeas
corpus must be DENIED.*fn8
IT IS SO ORDERED.