Full opinion text
GARZA, Circuit Judge: We have gathered en banc to consider the circumstances surrounding the arrest, interrogation, confession, and trial of Jerry Lane Jurek, convicted of murder and sentenced to death in a Texas state district court. A panel of this Court has reversed a federal district court’s denial of Jurek’s petition for a writ of habeas corpus. Jurek v. Estelle, 593 F.2d 672 (5th Cir. 1979). The panel majority based its decision upon conclusions that Jurek’s two confessions were involuntary, and that the exclusion of certain veniremen at his trial contravened the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). A new trial was held to be required. On reconsideration en banc, we have concluded that Jurek’s first confession was voluntarily given, and that it may constitutionally be admitted in a new trial. We have also concluded that the second confession was involuntarily given, and may not be used. Grounding our decision on those bases, we need not and do not reach the Witherspoon issue. THE STANDARD OF REVIEW We are met at the outset with questions relating to the standard of review. In considering a district court’s denial of habeas corpus relief sought on the ground of an admitted confession’s involuntariness, must we accept the findings of the district court unless clearly erroneous? If there were no specific findings on crucial issues, what is our role? These questions arise from a collision of authorities. On one hand, the Supreme Court has frequently stated that it is our affirmative duty “to examine the entire record and make an independent determination of the ultimate issue of voluntariness.” Beckwith v. United States, 425 U.S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976). See also Davis v. North Carolina, 384 U.S. 737, 741-42, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966); Haynes v. Washington, 373 U.S. 503, 515-16, 83 S.Ct. 1336, 1344, 10 L.Ed.2d 513 (1963); Spano v. New York, 360 U.S. 315, 316, 79 S.Ct. 1202, 1203, 3 L.Ed.2d 1265 (1959); Ashcraft v. Tennessee, 322 U.S. 143, 147-48, 64 S.Ct. 921, 923, 88 L.Ed. 1192 (1944); Lisenba v. California, 314 U.S. 219, 237, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941). This duty is not “foreclosed by the finding of a court, or the verdict of a jury, or both.” Lisenba, 314 U.S. at 237-38, 62 S.Ct. at 290. On the other hand, we are confronted by the well-established rule that factual questions in habeas corpus proceedings should be determined by the district court and that its factual conclusions are binding on the court of appeals unless clearly erroneous. Patterson v. United States, 487 F.2d 341 (5 Cir. 1973); Fed.R.Civ.P. 52. Accord: United States ex rel. Henne v. Fike, 563 F.2d 809, 813 (7 Cir. 1977); Bellew v. Gunn, 532 F.2d 1288, 1291 (9 Cir. 1976); Leasure v. Lockhart, 509 F.2d 23, 25 (8 Cir. 1975); United States ex rel. Marino v. Rundle, 464 F.2d 149 (3 Cir. 1972); Zovluck v. United States, 448 F.2d 339, 341 (2 Cir. 1971); Monnich v. Kropp, 408 F.2d 356, 357 (6 Cir. 1969); Linebarger v. Oklahoma, 404 F.2d 1092, 1094 (10 Cir. 1968); Vanater v. Boles, 377 F.2d 898, 900 (4 Cir. 1967). The panel majority, citing the opinion of the Supreme Court in Beckwith, supra, concluded that “we may overturn the district court’s conclusion on [the ultimate issue of voluntariness] even if it is not clearly erroneous.” 593 F.2d 672 at 677. Plainly, that is not the law with regard to findings of fact. We will not disregard or overturn specific findings of fact made by the district court unless they are clearly erroneous. Pursuant to our duty to examine the “entire” record and make an independent appraisal of the voluntariness issue, however, we may, where the district court made no findings on matters crucial to the ultimate determination, reach into the record and rely on undisputed facts clearly supported therein. If such clarity does not appear, a remand for further findings may be in order. We note as a caveat that where some or all of the evidence was not the live testimony of witnesses, but instead consisted of transcripts, depositions, or documents reviewed by the lower court, the clearly erroneous rule will not apply with full force where “the appellate court is in as good a position as the lower court to evaluate the testimony that is crucial to the case.” Caradelis v. Refineria Panama, S.A., 384 F.2d 589, 593 (5 Cir. 1967). Thus, we may draw our own inferences from such evidence. See Nash v. Estelle, 597 F.2d 513, 518 (5 Cir. 1979) (en banc). In passing on the ultimate issue of voluntariness, we may substitute our own judgment even in the absence of a conclusion that the district court’s ruling was clearly erroneous. No less is required by the admonition of the Supreme Court to make an “independent” review. The facts and procedural history of this case have been oft-recited, yet we must relate them in some detail once more, for the chronology is crucial. Counsel for Ju-rek have argued that there are no disputed fact issues, and that on the undisputed facts Jurek’s confessions were involuntary as a matter of law. It must be noted, however, that in several important areas the findings of fact made by the district court were not comprehensive. The following recital will, where necessary, reach beyond those findings to incorporate undisputed facts which are clearly supported in the record, or portions of the state record and depositions from which we are able to draw our own inferences. THE FACTS The victim, ten year old Wendy Adams of Cuero, Texas, disappeared on August 16, 1973. Jurek was awakened at his parent’s home at approximately one o’clock on the morning of August 17th by two police officers acting on a report that she had been seen screaming for help in Jurek’s truck as it sped through Cuero. One of the officers was her father, Ronnie Adams. Jurek was questioned briefly, and was read Miranda warnings by Adams. He was taken barefoot and without a shirt to the Cuero jail, where he was logged in and placed under arrest at 2:30 a. m. The authorities discovered an outstanding arrest warrant on a “hot check” charge, by which they could hold him. Jurek was questioned again that morning at about 9:00. At some point, he volunteered to take a polygraph examination. He was taken in the afternoon to Austin, the state capítol approximately 120 miles from Cuero. Upon being tested, he was confronted with results suggesting that he had lied. As his counsel stated on oral argument, “he turned to science for help, and science turned him down.” Jurek then gave an oral confession of responsibility for Wendy Adams’ death, stating that her body had been thrown into the Guadalupe River. While he apparently gave several conflicting versions of the crime, his statement led to the discovery of the girl’s body on the next morning. It was the first time that the investigating authorities had learned she was dead. Jurek was returned to Cuero and taken immediately before a magistrate, Justice of the Peace Albert B. Ley. Judge Ley read him the list of rights printed on a “Magistrate’s Certificate” form. Ley testified as to what occurred at this interview in the state district court, both at a suppression hearing on the confessions, and at trial. Since the federal district court had before it nothing more than the same transcript of that testimony that we now review, “our interpretation of the interview is unconstrained by the usual strictures of the clearly erroneous standard.” Nash v. Estelle, 597 F.2d at 518. At the suppression hearing, Ley testified that Jurek had stated that he understood the rights read to him. In response to a question concerning his knowledge of the Jurek family’s financial standing, directed toward ascertaining the reason for the high bond he had set, Ley responded: A Well, other than just hearsay of the financial standing of them. I couldn’t be positive about the standing of them, other than he did tell me when we talked about it, that — that he could not afford a lawyer and the Court would have to appoint him one. And I said, well, that’s what it states in here, that if you are unable and if you sign a pauper’s oath, why, then they would set — we would appoint an attorney to represent you. At trial on the merits, Ley was again questioned as to the appointment of counsel, and the following colloquy occurred: Q All right. When you came to that part of the warning which says that he has the right to have an attorney— A That’s right. Q —appointed, did you go into that with any detail? A I went into it with him and asked him if he wanted an attorney with him before I finished reading it. And before I started reading it, I asked him, and he said he didn’t just to go ahead and read it. The federal district court found that Ley quoted Jurek as stating, “he could not afford a lawyer and the court would have to appoint one for him.” It disregarded the later testimony we have quoted, which is important to a full understanding of the “need for counsel” statement made by Ju-rek. The principals involved in the interrogation of Jurek following his appearance before Judge Ley were De Witt County Attorney Robert Post, and District Attorney Wiley Cheatham, who later prosecuted the case at trial. Post testified at Jurek’s trial as to the events surrounding the confessions, and Cheatham was deposed before the instant habeas corpus proceeding. As with the Ley testimony in the state court we may examine the entirety of their testimony, the district court below having considered only the bare transcripts. After Jurek signed the Magistrate’s Certificate, he and Cheatham made one trip to a place where Jurek said the body might be found. It was not discovered. Cheatham testified by deposition at the federal habeas corpus proceeding that as arrangements were being made to transfer Jurek to Victoria, Texas, for the night, the accused asked to speak with him, and the process of obtaining a written confession began. Post and Cheatham were present when Jurek gave the first written confession. Cheat-ham typed it himself, as it was given. At 1:15 a. m., Jurek signed the confession. Two persons witnessed his signature, and one of them testified that he was warned of his rights again, and that the statement was voluntary. The district court noted County Attorney Post’s testimony at the state suppression hearing that Jurek had stated before signing that he did not want an attorney. The first confession is composed of simple, ungrammatical prose. Jurek stated that he had asked Wendy Adams at the Cuero swimming pool to go riding in his truck, and that he had driven “out to Hell’s Gate Bridge” with the girl in the back of the truck. Jurek recounted that at the bridge she had criticized his drinking, and Jurek’s brother’s neglect of his family. He stated that he had become enraged, and began choking her. When she was still, he threw her into the river. There was nothing to support a theory that Jurek had kidnapped the girl, or had attempted sexual relations with her. The lack of such aggravating factors is crucial to an understanding of the events which followed. As the panel opinion noted, 593 F.2d at 675 n.4, under the relevant Texas Penal Code provision in effect at the time of this crime, the crime of murder could be “punishable by death only if an aggravating factor was present. See Tex. Penal Code Art. 1257(b).” (For current version, see Tex.Penal Code Ann. Art. 1903.) Jurek was charged with having committed murder in the course of kidnapping and attempted rape. The first confession did not bear these accusations out, and examination of Wendy Adams’ body yielded no suggestion of attempted rape or of any sexual contact. Following his signing of the confession, Jurek was transferred to the jail at Victoria, approximately fifty miles away, for what we are told were security reasons. At about 10:00 a. m. the victim’s body was found floating in the Guadalupe River. That afternoon Jurek was returned to Cue-ro for further interrogation. No court-appointed attorney was waiting. Cheatham testified as to his motivation for further questioning: Q I understand. What was the purposes of taking the second statement? A Well, we found out there were parts of the first statement that we felt were incorrect, not true. Q There’s no question that this young man was reluctant as far as you recall, were concerned, to tell you the truth about what happened? A Well, you’re going to have to be— your statement is so broad I can’t answer without giving you — or you could take several different views of what my answer was. If you’ll be more specific. Q Well, the first written statement he didn’t — in your opinion, was — upon what you had heard and read about the case, he didn’t tell you the whole truth about it? A I questioned the truth, but I had to put it down like he gave it to me. I would have questioned it. In fact, I don’t think — I think Mr. Middaugh has confirmed my suspicions about how bad it was, but I don’t think he ever told us all of what I felt that he could have said. But again, I have to put it down, what he says, not what I think or feel like had happened. Q Yes, but as far as the taking of the first statement that was in writing, was concerned, he was reluctant to tell you the whole truth in your opinion based upon what you knew about the case? A Well, the way you’re putting it, you’re making it — I can’t answer yes or no, I have to qualify— Q He just didn’t tell you, in your opinion, all the truth on this first statement? A Well, I felt like there was sexual involvement all along, but he didn’t say that so I couldn’t put it in there. I wouldn’t have put it in. This testimony echoed that of Post at Jurek’s trial: A We just felt that he knew more than what he was telling us, as to the reasons, and what-not. Q Was this just a feeling on your part? A Yes, sir. On Jurek’s return to Cuero, he was brought to Post’s office. There, interrogation by Post, Cheatham, and several others began. Cheatham testified that: “. . . neither he [Post] nor I did much questioning. I more or less related to him that I felt a part of his statement was not correct, that I felt that there was sex or things like that involved and he was pretty brief and he said, well, I’m going to stand on my first statement and I said well, if that’s the way you feel and I had a hard long day and I got up and went out to the hall.” Post recounted at the state trial that after Cheatham left, Jurek indicated that he wanted to talk. Cheatham returned, and Jurek was taken to his office. The second confession was written in longhand by Post, and typed by Cheatham’s secretary. Post testified that he put Jurek’s own words down, “as near as possible as I could . . ” The correct grammar and composition of this confession are, however, vastly different from those of the first. It would be impossible to conclude that the same person gave each confession verbatim. The panel majority quoted a sentence in the second confession: “in the statement that I gave him I did not tell the truth about the conversation I had with Wendy at the river and the prior discussion about trying to find some girls to pick up and I now herein wish to correct that statement.” It did not, however, note the facial distinction between the two statements. The district court did not mention the composition of either. In the second confession Jurek stated that he had strangled the child after she refused to have sexual relations with him. Post was questioned as to whether Jurek was informed of the import of this statement: Q But did you really explain to the defendant what the effect of this statement was? Did you at any time tell the defendant that if he signed this second statement he was sending himself to the electric chair? A No, sir. I don’t think I did. Not having been informed of its significance, Jurek signed what was in effect his death warrant. At the time he did so he had been in custody forty-two hours and had seen neither his parents, nor a lawyer. TRIAL, APPEALS, AND HABEAS CORPUS Counsel for Jurek was appointed by Judge Ley after the second confession had been signed. The appointment was confirmed by State District Judge Kelly. The attorneys, George Middaugh and Emmett Summers III, moved to suppress the written confessions. Their motion was denied, and both confessions were admitted. Jurek was convicted of murder, and was sentenced to death in the punishment phase of his trial, under the bifurcated Texas system. The Texas Court of Criminal Appeals affirmed, rejecting an argument that the confessions were involuntary. Jurek v. State, 522 S.W.2d 934, 942-43 (Tex.Cr.App.1975). The Supreme Court granted certiorari, 423 U.S. 238, but only on the issue of the validity of the Texas death penalty statute. It affirmed, holding the state law constitutional. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The action of the Court of Criminal Appeals in upholding the admission of the confessions had been complained of in Jurek’s petition for certiorari. After the Supreme Court denied rehearing, the state district court formally sentenced Jurek, and set his execution for January 19, 1977. Petitions for habeas corpus were denied by the state trial court and the Court of Criminal Appeals on January 10th and 11th. On January 12th petitioner filed an application for a stay of execution in the Supreme Court, and on January 13th he filed a stay application and an application for a writ of habeas corpus in the United States District Court for the Southern District of Texas. On January 17th, the Supreme Court granted a stay pending the filing of a petition for certiorari. It denied certiorari on March 28th, stating: “Without intimating any views on the merits of the questions presented to the United States District Court for the Southern District of Texas in petitioner’s pending application for a writ of habeas corpus, [the] petition for [a] writ of cer-tiorari [is] denied . ..” 430 U.S. 951, 97 S.Ct. 1592, 51 L.Ed.2d 800 (1977). The federal district court then granted a stay of execution on March 30th and began consideration of the habeas corpus application. The application was based on numerous grounds, the voluntariness of Jurek’s confessions and the Witherspoon issue among them. The district court held an evidentia-ry hearing at which three doctors and one of Jurek’s trial attorneys testified. The doctors’ testimony went to one important facet of this case, the issue of Ju-rek’s mental capacity. The district court found that “testimony at the evidentiary hearing, as well as expert testimony during the trial of Jurek, established that petitioner is an individual of below-average intelligence, mildly retarded, with possible organic brain damage.” In another part of the opinion, it stated that “[J]urek’s intelligence is below average, or ‘dull normal.’ ” While the medical testimony was in some conflict, and the quoted conclusions may somewhat overstate the extent of Jurek’s mental limitations, we cannot say that these holdings were clearly erroneous. The district court, on the basis of its evidentiary hearing and briefs submitted by the parties, denied the habeas corpus application in an unpublished memorandum opinion. A panel of this court, cited supra, concluded that under the totality of the circumstances both confessions were involuntary, and that error in the state court under the Witherspoon doctrine also mandated a new trial. Chief Judge Coleman dissented, arguing that both confessions were voluntary, and that the Witherspoon issue should not be reached. A petition for rehearing en banc was granted by a majority of the judges then on this court. Jurek v. Estelle, 597 F.2d 590 (5 Cir. 1979). CONSTITUTIONAL STANDARDS The panel majority opinion provides an exhaustive survey of the case law relating to the voluntariness of confessions. See 593 F.2d 676-79. We do not dispute the validity of the principles stated therein, but differ only on their application to the facts of this case. The panel majority noted that there is no “talismanic” test yielding a formula for a mechanical determination of voluntariness. Schneckloth v. Bustamonte, 412 U.S. 218, 224, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973). It recited a number of expressions by the Supreme Court of the fundamental requirements for voluntariness. Those statements may be synthesized to require that in order to find Jurek’s confession voluntary, we must conclude that he made an independent and informed choice of his own free will, possessing the capability to do so, his will not being overborne by the pressures and circumstances swirling around him. The burden of proving facts which would lead to an opposite conclusion is on the habeas corpus applicant. Bruce v. Estelle, 536 F.2d 1051 (5 Cir. 1976). This is, necessarily, a case-by-case endeavor. We must weigh the totality of the circumstances and examine their impact on Jerry Lane Jurek as to each of his confessions, guided by those cases which have identified factors, “red flags” which will arouse the suspicion and close scrutiny of the reviewing court. See Fikes v. Alabama, 352 U.S. 191, 197, 77 S.Ct. 281, 284, 1 L.Ed.2d 246 (1957). We must determine whether the sum of the circumstances compels a finding of involuntariness. It has been repeatedly argued that the confessions are simply the truth, and the state has frequently invoked the brutality of the crime. We are bound by our oaths to bar such considerations from our decision of this case. “We are not called upon in this proceeding to pass on the guilt or innocence of the petitioner of the atrocious crime that was committed.” Davis v. North Carolina, 384 U.S. 737, 739, 86 S.Ct. 1761, 1763, 16 L.Ed.2d 895 (1966). The issue of voluntariness must be addressed “with complete disregard of whether or not petitioner in fact spoke the truth.” Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 741, 5 L.Ed.2d 760 (1961). The panel relied on a number of factors in reaching its conclusion of involuntariness. It noted Jurek’s limited verbal intelligence, and the problem of “suggestibility” flowing therefrom. Secondly, it relied upon a conclusion that Jurek’s confessions were apparently not in his own words. Third, it took into account the “manifest attitude” of the prosecutors toward Jurek, as reflected by their actions. Emphasis was placed upon Jurek’s partial lack of clothing when taken into custody, the movements from Cuero to Austin to Cuero and to Victoria and back, and that the accused saw neither counsel nor family for forty-two hours, covering the period in which the confessions were given. The majority fourthly identified the failure to appoint an attorney immediately following Jurek’s “request” before the magistrate. Finally, it was noted that the prosecuting authorities did not “relent” following Jurek’s first confession, evincing a “purposeful interrogation” directed not toward solving the crime, but to securing a statement on which they could convict [or enhance the punishment of] Ju-rek. On reconsideration en banc, it is instructive to begin by examining each of these factors. JUREK’S MENTAL LIMITATION In considering the voluntariness of a confession, this court must take into account a defendant’s mental limitations, to determine whether through susceptibility to surrounding pressures or inability to comprehend the circumstances, the confession was not a product of his own free will. The Supreme Court has made clear that such an inquiry involves “a weighing of the circumstances of pressure against the power of resistance of the person confessing.” Stein v. New York, 346 U.S. 156, 185, 73 S.Ct. 1077, 1093, 97 L.Ed. 1522 (1953). The concern in a case involving a defendant of subnormal intelligence is one of suggestibility. See Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957). Doubtless, if the prosecutors pursue a specific object in the interrogation of such an accused, and the resulting confession bears the precise fruit of their aims, it will be doubly suspect. In this case, the district court did not find, and the record would not support a finding that Jurek was so mentally deficient that his confessions must necessarily be held involuntary, or that he could not understand the circumstances surrounding his interrogation and confession. Questions of suggestibility and possible overreaching are raised, however, and must be factored into a consideration of the totality of the circumstances. THE COMPOSITION OF THE CONFESSIONS We have noted that there is an obvious facial distinction between the two confessions. The first statement could plausibly be attributed to Jurek’s own words. We must view incredulously, however, any suggestion that the second confession came directly from the accused. It is noteworthy that the second was taken in longhand by a prosecutor and then typed. The panel majority was doubtless correct in its statement that prosecution-composed confessions are highly suspect, particularly where the accused is of below normal intelligence, citing Spano v. New York, 360 U.S. 315, 322, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 (1959); Blackburn v. Alabama, 361 U.S. 199, 204, 207-08, 80 S.Ct. 274, 278, 280, 4 L.Ed.2d 242 (1960); Fikes v. Alabama, 352 U.S. 191, 195, 77 S.Ct. 281, 283, 1 L.Ed.2d 246 (1957). As to the first confession, we have undisputed testimony that it was taken word for word as closely as possible, and a document that, from the four corners, does not contradict the testimony. With the second confession, however, we have the same testimony, but a document which could not have been attributed to the author of the first, is far too sophisticated in its grammar to be consistent with the medical testimony concerning Jurek’s intelligence, and contains, as the panel majority noted, “even a touch of legalese.” We will, accordingly, look on the second confession with that suspicion mandated by the Supreme Court. JUREK’S “REQUEST” FOR COUNSEL The panel majority placed great emphasis on Jurek’s statement before the magistrate that he could not afford a lawyer and that the court would have to appoint one for him. Noting that the district court had held that Jurek’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1965), were not violated by the failure to appoint counsel immediately, the panel majority cited United States v. Priest, 409 F.2d 491 at 493 (5 Cir. 1969), for the proposition that “any subsequent ‘waiver’ of counsel — such as the statement Jurek made to the county attorney before his first confession — has no legal significance.” 593 F.2d at 679. However, it expressly declined to “decide whether the magistrate’s inexplicable failure to appoint counsel, and the subsequent continued interrogation, formally violated Miranda;” rather, it considered the matter “to be further evidence of the involuntariness of his confessions.” Id. The district court concluded that “Jurek told the magistrate that he could not afford counsel . . It is not clear that Jurek asked for counsel at that time,” and found that “[T]he record in this case shows conclusively that Jurek was asked if he wanted counsel, but Jurek clearly declined the right to counsel.” We agree that the question should be considered as evidence of involuntariness. We believe, however, that the district court’s findings were correct, and that they both negate any conclusion that Miranda was violated, and demonstrate the minimal effect of the lack of immediate assistance on the voluntariness issue. Priest, relied on by the panel majority, announced a per se rule holding any waiver of counsel ineffective after a request for assistance was made. The rule of Priest was limited by this court, sitting en banc, in Nash v. Estelle, 597 F.2d 513 (1979). There, the court construed Priest to bar any inquiry as to waiver where a request for counsel is unequivocal, and when the request is disregarded and questioning proceeds. 597 F.2d at 517. It was further held that where a suspect has been informed of his rights and expresses both a desire for counsel and a wish to continue the interview without immediate assistance, it is proper for the authorities to make further inquiry to clarify his wishes. Id. Priest involved an unequivocal request for counsel, and therefore this case is far closer to Nash. In a recent decision involving a factual situation similar to the one before us, the opinion of this court per Judge Roney contains an exhaustive analysis of these cases and reaches the same conclusion we make here. Blasingame v. Estelle, 604 F.2d 893 (5 Cir. 1979). Whenever a question of waiver of counsel arises, a federal court must look to the totality of the circumstances surrounding the alleged waiver to determine whether, in truth and in fact, a knowing waiver occurred. Under this analysis we cannot consider Jurek’s statement to Judge Ley in naked isolation. Rather, it must be read in conjunction with his later remarks that he did not desire counsel upon being asked if one should be secured then. This clarification was permissible under Nash, for the import of Jurek’s first statement was that he could not afford a lawyer and would eventually need one. It was not an unequivocal request. Therefore, we are not faced with a situation where a request for counsel was denied or ignored. Rather, the authorities did not independently, and against Jurek’s clearly expressed desire to proceed without counsel, appoint a lawyer immediately. This, and no more, must be considered along with the other events in passing judgment on the voluntariness of these confessions. PROSECUTORIAL MOTIVATION We must be alert, as the panel majority stated, to the “manifest attitude” of the police toward the defendant. Culombe v. Connecticut, 367 U.S. at 602, 81 S.Ct. at 1879; Smith v. Heard, 315 F.2d 692, 694 (5 Cir. 1963). The Supreme Court has mandated “the most careful scrutiny” where the primary aim of prosecutors was “securing a statement from defendant on which they could convict [the defendant]” as opposed to solving the crime. Spano v. New York, 360 U.S. at 323-24, 79 S.Ct. at 1207. We must also bear in mind the principle that a “presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume they have properly discharged their official duties.” Nash v. Estelle, 597 F.2d at 518, quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926). Before Jurek’s lie detector test, the primary concern of the authorities appears to have been the safe recovery of the little girl. After Jurek’s oral confession, it seems to have shifted logically toward determining the exact circumstances of her death, Jurek’s role in it, and to finding the remains. There is nothing in the record to suggest a drive toward Jurek’s confession. After having been warned, he had already done so. He was taken before a magistrate promptly on returning from the polygraph examination, and soon after gave the first written confession. The district attorney testified that the written confession was taken after Jurek sent for him. In a very real sense, the first written confession stands in place of the earlier oral one. That first oral expression of guilt was rapidly supplanted by the written version, and the fact that counsel was not appointed at the intervening magistrate’s hearing has little impact, as discussed supra. As to the second confession, however, there is ample evidence of a prosecutorial “drive for the death penalty.” The dimly articulated dissatisfaction of Cheatham and Post with the first confession, and their “feeling” that sex was involved, led them to bring Jurek back to Cuero for further interrogation. They already had a valid confession from Jurek, and the little girl’s body showed no sign of sexual contact. They suggested to Jurek that they thought the first confession was incomplete and that sex had been involved, and did not explain the deadly effect of his signature on the second confession. The panel majority mentioned these efforts in considering the motivation of the prosecutors, and its comments were limited to events surrounding the second confession: “When they questioned Jurek in an effort to elicit his second confession, the authorities were not trying to find Wendy Adams, for they had already found her body; they were not even trying to find out who killed her, for Jurek had already confessed to that. It is difficult to resist the conclusion that they were trying to gain the evidence that would send Jurek to his death.” 593 F.2d at 679. OTHER FACTORS Of those other actions by prosecuting authorities cited by the panel majority to support its conclusion, no single event is sufficient to place the stamp of involuntariness upon Jurek’s confessions. His lack of clothing at his first interrogation must be considered in terms of the totality of the circumstances. The transfer of Jurek to Austin occurred at his own request, and the move to Victoria was apparently motivated by security reasons. That he saw neither his family nor an attorney through the execution of the second confession is indeed significant. However, as the first confession was given only twenty-four hours after his arrest and less than ten hours after his oral confession in Austin, the issue of isolation bears more on the second confession, made over forty hours after his arrest. Having examined each of the factors which have been held by the panel to taint Jurek’s confessions, we proceed to a consideration of their total effect on each confession. THE FIRST WRITTEN CONFESSION There is little to indicate that this document was involuntarily given. It was given after Jurek was given repeated warnings of his rights. It was given after he was accorded a lie detector test at his own request, at which he gave an oral confession. He had been before a magistrate, who again read him his rights, and explained them. While Jurek stated that he could not afford counsel, he also stated that he did not need one at that time. Examining the full range of circumstances under the totality approach, it is obvious that Jurek knowingly waived counsel before the first confession, particularly where he had been warned of his rights, and was doing no more than giving a written version of an oral confession made when no charges had been filed against him. Further, it cannot be held that the authorities, who had just secured an oral confession, who had warned Jurek of his rights and were met with firm statements that the accused did not want counsel at that time, should have ignored the waiver and appointed an attorney anyway. The confession appears to be in Jurek’s words. There is little to indicate that the prosecutors were striving for any result other than the solution of the crime and the recovery of Wendy Adams’ remains. It cannot be held that the totality of the circumstances reveal that this confession was not given of Jerry Lane Jurek’s free will. THE SECOND CONFESSION The circumstances are vastly different with regard to the second confession. We have mentioned that the authorities hauled Jurek back to Cuero for renewed interrogation which produced exactly the confession they desired. This document contradicted the first confession and could not conceivably have been composed by Jurek. There is no indication that he was informed of the importance of the second confession. When Jurek’s limited intelligence is factored into our consideration, it becomes evident that he could not have understood the gravity of his act in the absence of legal counsel. No court-appointed attorney worth his salt would have allowed Jurek to sign the second confession. Other factors intervene to bolster an inescapable conclusion that the confession was involuntary. When the first was given, he had been in custody less than twenty-four hours, little of which had been spent in actual interrogation. He had confessed orally only that afternoon. By the time the second was signed, he had been out of contact with the outside world for over forty hours. The disapproval of those in control of his environment had been expressed to him, and they had suggested the direction in which they wished him to travel. We give relevance to the failure of the authorities to inform Jurek that the statement they sought embodied a factor which entailed the sentence of death only in that awareness of that fact would almost certainly have prevented a man in Jurek’s situation from wearily accepting a suggested untruth, feeling that he had already sealed his fate via the first confession to murder. Considering that Jurek had been in custody and isolated for almost two days, that a valid confession solving the crime had been obtained, that the investigation had taken on, in a suggestive manner, the purpose of amending that confession to secure the death penalty, and that a defendant such as Jurek was surely incapable of considering the effect of the amendment without help, the authorities should have ignored the waiver of immediate assistance and acted on Jurek’s latent expression of “need” for counsel before the magistrate, or, at the very least, informed him of the significance of the information sought. Professional prudence and respect for Ju-rek’s constitutional rights demanded no less. CONCLUSION In holding one confession to be valid and another invalid under the constitution, we are in accord with the purpose and theory of appellate review of voluntariness issues. We sit to review the sum of the facts, and to determine if, and at what point, the totality of those facts renders a confession so suspect that to admit it into evidence would deny the defendant due process of law, and contravene the prohibition against compelled self-incrimination found in the Fifth Amendment. That point will shift from case to case, dependent upon the presence or absence of factors suggesting coercion, intimidation, overreaching, or the deprivation of rights secured by the constitution, which combine to defeat the free and independent exercise of the will of an accused. As the panel majority noted, “ ... at some point the pressure can become too insistent; we can then say that the responses elicited are involuntary.” 593 F.2d at 676. Here, there are almost no indicators pointing to an involuntary first confession. In the case of the second, the factors suggesting involuntariness predominate. Mr. Justice Frankfurter once observed that the problem of voluntariness involves considerations both of “liberty” and “security.” Culombe v. Connecticut, 367 U.S. at 578, 81 S.Ct. at 1865. We are mindful of Justice Frankfurter’s admonition that the conviction is “basic to our legal order, that men are not to be exploited for the information necessary to condemn them before the law, [and] that, in Hawkin’s words, a prisoner is not to be made the deluded instrument of his own conviction.” Id. at 581, 81 S.Ct. at 1867. We are also mindful of the necessities and difficulties of effective law enforcement, in which the confession may be an essential and fair device for the protection of the public. We have found that in their efforts to secure such protection by ensuring that Jurek was condemned, the law enforcement authorities ran far too high a risk of making him the deluded instrument of his own execution. Therefore, the judgment of the District Court is REVERSED, and the cause is REMANDED with directions to grant the writ of habeas corpus, Jurek being entitled to a new trial without the use of his second confession. GODBOLD, Circuit Judge, with whom ALVIN B. RUBIN, Circuit Judge, joins, specially concurring: With respect to the two written confessions, I join in the result reached in the special concurring opinion by Judge Frank M. Johnson, Jr., that both written confessions were inadmissible. With respect to the oral statements made by Jurek prior to the first written confession, I am not able to join in Judge Johnson’s conclusion that all four were inadmissible. I also agree with the conclusion set out in Judge Garza’s opinion that the second written confession is inadmissible. FRANK M. JOHNSON, Jr., Circuit Judge, with whom KRAVITCH, HATCH-ETT, R. LANIER ANDERSON, III, RANDALL, TATE and THOMAS A. CLARK, Circuit Judges, join, specially concurring: I concur in the court’s judgment that Jerry Lane Jurek is entitled to a new trial, and, more specifically, I agree with that portion of Judge Garza’s opinion invalidating the second of the two confessions that were admitted against Jurek at trial. I cannot, however, agree with that portion of Judge Garza’s opinion finding valid the first confession. In my opinion, the confessions were each constitutionally defective, one, because they were involuntary and thus their admission denied Jurek due process of law, see Mincey v. Arizona, 437 U.S. 385, 401-02, 98 S.Ct. 2408, 2418-19, 57 L.Ed.2d 290 (1978); two, because they were obtained in violation of Jurek’s Sixth Amendment right to counsel, see Brewer v. Williams, 430 U.S. 387, 397-406, 97 S.Ct. 1232, 1238-43, 51 L.Ed.2d 424 (1977); and, three, because they were obtained in violation of Jurek’s Fifth Amendment right not to be compelled to incriminate himself, see Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). I. The Supreme Court has established that in cases involving multiple confessions courts may hold some of the confessions involuntary and others not only if such a distinction is justified by a sufficiently isolating “break in the stream of events.” E. g., Darwin v. Connecticut, 391 U.S. 346, 349, 88 S.Ct. 1488, 1489, 20 L.Ed.2d 630 (1968); Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967); Clewis v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 1340, 18 L.Ed.2d 423 (1967); Reck v. Pate, 367 U.S. 433, 444, 81 S.Ct. 1541, 1548, 6 L.Ed.2d 948 (1961); Leyra v. Denno, 347 U.S. 556, 561, 74 S.Ct. 716, 719, 98 L.Ed. 948 (1954). My review of the record indicates that no such “break” appears here. According to the record, Jurek made in sequence at least four oral and two written confessions. Judge Garza distinguishes the second written confession, and holds it alone to have been involuntary, on the basis of his conclusion that the police and the prosecutors decided to ‘get tough’ with Jurek only after they realized that his first— assertedly voluntary — written confession, although sufficient to sustain a conviction for murder, was not sufficient to convict him of capital murder and thus send him to his death. The record, however, refutes this conclusion. It shows that at the time of the second written confession Jurek’s questioners believed that they had more than enough evidence to obtain a death verdict. What the record reveals is that the police and prosecutors sought the second written confession for the same reason that they had sought the first: they wanted to obtain from Jurek a signed statement of what they believed to be “the truth.” The record demonstrates that each time they learned of some new particular relating to Wendy Adams’ disappearance, they went to Jurek and had him revise his ‘confession’ in order to conform to it. This was true of the three oral confessions that Jurek made in Austin. It was also true of the one oral and two written confessions that Jurek later made in Cuero. Judge Garza’s other arguments notwithstanding, in my opinion the record simply does not reveal a “break in the stream of events” from arrest through the time of the second written confession sufficient to base a distinction as to voluntariness. When the distinction relied on by Judge Garza is discarded, adherence to well-established Supreme Court precedent is all that is necessary to recognize that the ‘totality of the circumstances’ in this case, determined pursuant to this Court’s set duty to make an independent review of the record, fully justifies and requires the conclusion that each of Jurek’s confessions was involuntary. In the four decades since Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936), the Supreme Court has reviewed the voluntariness of over forty confessions introduced against criminal defendants in state courts. E. g., Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Spano v. New York, 360 U.S. 315, 321 n.2, 79 S.Ct. 1202,1206 n.2, 3 L.Ed.2d 1265 (1959) (citing 28 cases). In so doing, the Court has established a number of indicia of involuntariness. See, e. g., Schneckloth v. Bustamonte, 412 U.S. 218, 223-27, 93 S.Ct. 2041, 2045-47, 36 L.Ed.2d 854 (1973). Clearly more than enough of these indicia are present here. As noted above, Jurek made at least six separate confessions. Each was the result of frequent interrogation, carried on by a number of questioners, often at odd hours and in secluded places, that continued in the face of Jurek’s evident unwillingness to admit guilt. The authorities responsible displayed an intentional disregard of state law. At the time the confessions were obtained, Jurek was apparently weak from lack of food and sleep, isolated from family, friends, and legal counsel, and in legitimate apprehension of imminent physical harm. Jurek was not the kind of accused the Supreme Court has identified as capable of withstanding such pressures. To the contrary he was young, poorly educated highly suggestible, and borderline mentally retarded. In such circumstances, as the Supreme Court has specifically held, the fact that he may have been advised of his constitutional rights, but see infra, is of little significance. Sims v. Georgia, 389 U.S. 404, 407, 88 S.Ct. 523, 525, 19 L.Ed.2d 634 (1967); Beecher v. Alabama, 389 U.S. 35, 37 n.4, 88 S.Ct. 189, 190 n.4, 19 L.Ed.2d 35 (1967); Fikes v. Alabama, 352 U.S. 191, 193, 77 S.Ct. 281, 282,1 L.Ed.2d 246 (1957) The authorities did not literally beat Jurek’s confessions out of him, one of the few indi-cia of involuntariness not here present, but “the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (1960). With due regard for the Supreme Court’s admonition that inquiry into the issue of voluntariness “requires more than a mere color-matching of cases,” Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 1547, 6 L.Ed.2d 948 (1961), a realistic appraisal of the circumstances of this case has compelled me to conclude that each of Jurek’s confessions was coerced. Due process of law requires that statements so obtained cannot be used in any way against a defendant at his trial. Mincey v Arizona, 437 U.S. at 402, 98 S.Ct. at 2419. The admission of Jurek’s two written confessions was, for this reason, constitutional error. II. It also seems to me plain that Jurek’s confessions were obtained in violation of his Sixth Amendment right to counsel. As the Supreme Court recently reiterated, it is well established that under the Sixth Amendment, “once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him.” Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977); McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556,14 L.Ed.2d 682 (1965); Massiah v. United States, 377 U.S. 201,206, 84 S.Ct. 1199,1203,12 L.Ed.2d 246 (1964). Here there is no doubt that Texas had initiated adversary proceedings against Jurek at least prior to the two written confessions. Nor is there any doubt that the confessions came in the course of government interrogation. Jurek was thus plainly entitled to the assistance of counsel guaranteed to him by the Sixth and Fourteenth Amendments. What the state contends, and what Judge Garza and Judge Brown apparently conclude, is that Jurek waived this right. After a review of the record, I simply cannot agree. It is settled that, in order for a state to be able to introduce under an assertion of waiver, statements obtained from an accused who was entitled to but did not have assistance of counsel, it is incumbent upon the state to prove “an intentional relinquishment or abandonment of a known right or privilege.” Brewer v. Williams, 430 U.S. at 404,97 S.Ct. at 1242; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). As the Brewer Court emphasized, this is not a standard of proof to be taken lightly: courts are to “indulge in every reasonable presumption against waiver.” 430 U.S. at 404, 97 S.Ct. at 1242. E. g., Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966); Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942); Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023. It seems to me clear that the state has not satisfied this standard here. The record fails to show that Jurek ever understood, much less waived, his right to counsel. When he was taken before the magistrate, charged with “murder with malice,” and read his rights, Jurek told the magistrate that he could not afford a lawyer and that one would have to be appointed for him. The magistrate’s response was to tell him that he had a right to appointed counsel at trial. The later Mi randa warnings testified to by the police notwithstanding, this response would have been likely to mislead a person of normal intelligence. It seems almost certain that it would have misled or at least impermissibly confused a person as poorly educated, suggestible and mentally deficient as Jurek. In light of the lack of any evidence in the record demonstrating that Jurek was finally made to understand that he did not have to be able to pay to obtain immediate constitutional protection, and that he was entitled to court-appointed counsel not just at trial but prior to any questioning, it simply cannot be said that the state has proved that Jurek ever made the knowing and intelligent waiver of his right to counsel that the Sixth Amendment required. The admission of the two written confessions was, for this reason as well, constitutional error. III. For much the same reason, it also seems to me plain that Jurek’s confessions were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the Supreme Court established procedural safeguards for the protection of an accused’s Fifth Amendment right not to be compelled to incriminate himself. 384 U.S. at 441-42, 86 S.Ct. at 1611. See, e. g., Brewer v. Williams, 430 U.S. 387,397,97 S.Ct. 1232,1238, 51 L.Ed.2d 424 (1977); Michigan v. Tucker, 417 U.S. 433, 438, 94 S.Ct. 2357, 2360, 41 L.Ed.2d 182 (1974). Miranda requires that prior to any custodial police questioning an accused must be adequately informed of and waive his right to remain silent and his right to retained or appointed counsel. If this requirement is not fulfilled, the prosecution is barred from using any of the accused’s responses at trial as part of its case in chief. 384 U.S. at 444, 86 S.Ct. at 1612. See, e. g., Michigan v. Mosley, 423 U.S. 96, 99-100, 96 S.Ct. 321,324,46 L.Ed.2d 313 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). The Supreme Court has repeatedly emphasized that waiver of the Miranda rights is not to be lightly inferred. In asserting waiver, the prosecution’s burden is great. E. g., Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980); North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979); Miranda v. Arizona, 384 U.S. at 475, 86 S.Ct. at 1628. As the previous discussion of Jurek’s alleged Sixth Amendment waiver makes clear, the state has failed to carry this burden here. The record fails to establish that Jurek understood, much less waived, his right to appointed counsel prior to any questioning. It indicates only that he was made to understand that he had a right to appointed counsel at trial. As a result, Miranda barred the state from introducing any of Jurek’s confessions at trial as part of its case in chief. The admission of the two written confessions was, for this reason as well, constitutional error. IV. Our judicial heritage is rich in the recognition that no matter how severe the crime, the law controls its investigation, its prosecution, and, as we sit here, its review. See, e. g., Bumper v. North Carolina, 391 U.S. 543, 550 n.16, 88 S.Ct. 1788, 1792 n.16, 20 L.Ed.2d 797 (1968); Davis v. North Carolina, 384 U.S. 737, 739, 86 S.Ct. 1761,1763,16 L.Ed.2d 895 (1966); Spano v. New York, 360 U.S. 315, 320-21, 79 S.Ct. 1202,1205-06, 3 L.Ed.2d 1265 (1959); Olmstead v. United States, 277 U.S. 438, 479, 485, 48 S.Ct. 564, 572, 575, 72 L.Ed. 944 (1928) (Brandéis, J., dissenting); Boyd v. United States, 116 U.S. 616, 635, 6 S.Ct. 524, 534, 29 L.Ed. 746 (1886). As the Supreme Court recently stated in an opinion reversing the conviction of a defendant ‘clearly guilty’ of the “senseless and brutal” murder of a ten year old girl: The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder and the victim a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all. Brewer v. Williams, 430 U.S. 387, 406, 97 S.Ct. 1232, 1243, 51 L.Ed.2d 424 (1977). Jurek may not have been entitled to a perfect trial. See, e. g., Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972). But he was entitled to a fair one. U.S.Const. Amends. V, VI & XIV. For the reasons set out above, I concur in the court’s judgment that the case must be reversed and remanded with instructions to the district court to issue the writ. I dissent from Judge Garza’s conclusion that only one of Jurek’s confessions was constitutionally defective. JOHN R. BROWN, Circuit Judge, with whom COLEMAN, Chief Judge, AINS-WORTH, CHARLES CLARK, GEE, TJO-FLAT, HILL, FAY, VANCE, HENDERSON and REAVLEY, Circuit Judges, join, concurring in part and dissenting in part: This case presents in dramatic terms the tensions between promoting thorough and efficient enforcement of the laws and ensuring that the rights of the accused are scrupulously guarded. We have on the one hand a murder which could hardly have been more reprehensible; the violent, senseless slaying of a young girl. On the other hand, we have a decision by a panel of this Court throwing out Jurek’s two written confessions on the grounds of voluntariness, making it very unlikely that Jurek could again be convicted on retrial. Recognizing the importance of this case, we decided to review the panel decision en banc. A majority of the en banc Court, through a series of opinions, now concludes that the first written confession was properly admitted into evidence but that the second one was not. Judge Garza’s opinion, although embraced in its entirety by only 3 other Judges, thus represents the result reached by a majority of this Court. We concur in Judge Garza’s opinion with respect to the first confession but must dissent from his view with respect to the second one. In our view, the similarities in the circumstances surrounding the two confessions are striking, while the differences are inconsequential. Since our analysis of this case is shaped by the standard of review we adopt, the proper standard of review is the threshold issue before us. In our view, neither the panel opinion nor Judge Garza’s opinion gives this issue thorough enough consideration. After discussing the standard of review issue, we consider the circumstances common to the two confessions, indicating our disagreement with the panel opinion. Next, we focus on the first confession, examining factors supporting voluntariness not emphasized in Judge Garza’s opinion. We then focus on the second confession and attempt to demonstrate that most — if not all — of the distinctions between the two confessions emphasized by Judge Garza disappear upon close analysis. And any factual differences that remain clearly do not support a distinction of constitutional magnitude. Objective Of This Concurring/Dissenting Opinion The aim of this concurring/dissenting opinion is to support fully with additional reasons and considerable factual record material the eminently correct decision of Judge Garza holding the first confession admissible, and, by way of dissent, to demonstrate, again by analysis and full factual material, the incorrectness of his determination that the second confession was inadmissible. I. Standard Of Review The members of this concurring/dissenting opinion do not take a firm stand concerning the proper standard of review. Many Circuit Court cases suggest that the District Court’s findings that the two confessions were voluntary are findings of ultimate fact reviewable under the “clearly erroneous” standard. F.R.Civ.P. 52(a). However, the standard of review may not be quite so confined. Under Supreme Court precedent, we may be required to make an “independent review” of the record. In any event, as the following discussion demonstrates, the two standards are as a practical matter not that different. And all joining in this opinion agree that under either the “clearly erroneous” or the “independent review” standard, Jurek’s written confessions were voluntary. A. Clearly Erroneous Standard Until the panel opinion in this case, Jurek v. Estelle, 593 F.2d 672 (5th Cir. 1979), this Circuit had consistently held that in reviewing a Federal District Court’s denial of habeas corpus in a state criminal case, the “clearly erroneous” standard of F.R.Civ.P. 52(a) applies not only as to the individual subsidiary findings of fact but even as to the ultimate question of the voluntariness of the confession. See, e. g., Hyde v. Massey, 592 F.2d 249, 250 (5th Cir. 1979); United States ex rel. Young v. Wainwright, 490 F.2d 96, 97 (5th Cir. 1974); Edwards v. Beto, 446 F.2d 18, 19 (5th Cir. 1971); Mobley v. Smith, 443 F.2d 846, 848 (5th Cir. 1971); Cook v. Beto, 425 F.2d 1066, 1067 (5th Cir. 1970), cert. denied, 400 U.S. 944, 91 S.Ct. 248, 27 L.Ed.2d 249 (1970). But cf. Davis v. Heyd, 479 F.2d 446, 450 (5th Cir. 1973) (suggesting in dictum that the question of voluntariness of confession is one of law, not of fact). Similarly, most of the other Circuits that have considered the matter have also concluded that the “clearly erroneous” standard is the proper one in reviewing the District Court’s finding in a habeas case concerning the voluntariness of a confession. See, e. g., United States ex rel. Delle Rose v. LaVallee, 468 F.2d 1288, 1290 (2d Cir. 1972), rev’d and rem. on other grounds, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637, cert. denied, 414 U.S. 1014, 94 S.Ct. 380, 38 L.Ed.2d 251 (1973); United States ex rel. Jefferson v. Follette, 438 F.2d 320, 322 (2d Cir. 1971); Outing v. North Carolina, 383 F.2d 892, 896 (4th Cir. 1967); United States ex rel. Crump v. Sain, 295 F.2d 699, 701 (7th Cir. 1961), cert. denied, 369 U.S. 830, 82 S.Ct. 845, 7 L.Ed.2d 794 (1962); Cranor v. Gonzales, 226 F.2d 83, 94 (9th Cir. 1955), cert. denied, 350 U.S. 935, 76 S.Ct. 307, 100 L.Ed. 816 (1956). Cf. United States v. Johnson, 608 F.2d 725, 730 (9th Cir. 1979) (applying clearly erroneous standard on direct appeal in a federal criminal case). But see, e. g., Makarewicz v. Scafati, 438 F.2d 474, 477 (1st Cir. 1971), cert. denied, 402 U.S. 980, 91 S.Ct. 1685, 29 L.Ed.2d 145 (1971) (an appellate Court must make an independent determination on the ultimate issue of voluntariness); Outing v. North Carolina, supra, 383 F.2d at 914-15 (Frank Kaufman, D. J., dissenting) (arguing that clearly erroneous standard should not apply to determi