Dorsey v. United States

60 A.3d 1171, 2013 WL 28470, 2013 D.C. App. LEXIS 3

• Court: District of Columbia Court of Appeals
• Decided: January 3, 2013
• Docket: No. 06-CF-1099
• Status: Published

Opinions

GLICKMAN, Associate Judge:

Appellant James Dorsey was convicted after a jury trial of assaulting and robbing an elderly street vendor.¹ The videotape of Dorsey’s confession, introduced at his trial by the prosecution in its case-in-chief, was the most compelling evidence against him. In this appeal, Dorsey contends the trial court erred in admitting the confession.

While he was in police custody, Dorsey endured a grueling overnight interrogation during which, as the government concedes, detectives violated the rules of Miranda v. Arizona² and Edwards v. Arizona³ by continuing to press him to confess after he invoked his Fifth Amendment rights — both his right to cut off further questioning and remain silent, and his right to have counsel present during his questioning. As of 8:80 in the morning, when the detectives returned Dorsey to his holding cell, he still had not incriminated himself. Approximately seven hours later, however, Dorsey called out from his cell and asked for a second meeting with the detectives, saying he wanted to confess. He proceeded to do so without explicitly waiving his constitutional rights.

Prior to trial, Dorsey moved to suppress his confession. His motion was denied. The motions judge concluded that, notwithstanding the Miranda and Edwards violations, Dorsey validly initiated his second meeting with the detectives and waived his rights. The judge found that Dorsey was motivated to confess by feelings of remorse.

In a two-to-one decision, a division of this court upheld the admission of Dorsey’s confession and affirmed his convictions.⁴ The division majority agreed with the government that Dorsey’s confession was obtained in compliance with the dictates of Miranda and Edwards. The dissent disagreed, arguing that Dorsey’s initiation and waiver were invalid because he had been badgered into giving up his rights.

On March 25, 2011, in recognition of the important and difficult questions posed in this case, the full court granted Dorsey’s petition for rehearing en banc and vacated the division’s opinion and judgment. We are called on in this appeal to apply the rule announced in Edwards that a suspect in police custody who has invoked his Fifth Amendment right to counsel may not be interrogated further unless the suspect initiates the conversation with the police and waives his Miranda rights knowingly, intelligently, and voluntarily. To do so, we must clarify the requirements for finding a valid initiation and waiver and decide whether those requirements were satisfied here despite the Miranda and Edwards violations in the interrogation that preceded Dorsey’s confession.

As to the initiation, it was the government’s burden to show that Dorsey’s request to resume speaking with the police was not the product of the improper post-invocation badgering to which he had been subjected. Similarly, it was the government’s burden to establish that Dorsey waived his Fifth Amendment rights knowingly, intelligently, and voluntarily even though the detectives had thwarted his repeated efforts to terminate his interrogation and have an attorney present. We conclude that the government failed to show that the initiation and waiver requirements of Edwards were satisfied in this case.

Accordingly, we reverse Dorsey’s convictions and remand this case for a new trial.

I. Factual Background

The charges against Dorsey arose out of the robbery of 83-year-old Vassiliki Foto-poulous, a street vendor in Foggy Bottom, on May 3, 2005. The robbery was caught on videotape by a surveillance camera. The tape, which was broadcast on local television stations, showed a man confronting Fotopoulous in the loading dock of her apartment building, knocking her down, kicking her while she was on the ground, searching her pockets, and then leaving the scene. The man’s face was not clearly visible on the tape, but after viewing the broadcast, persons who knew Dorsey reported that they recognized him as Foto-poulous’s assailant based on the man’s gestures and clothing.⁵

Dorsey was arrested on the evening of May 7, 2005, on an unrelated domestic violence complaint. He attempted to flee when the police tried to apprehend him, and when he was stopped, he reportedly said, “[t]hat’s me on TV.”⁶ Dorsey matched the physical description that Fo-topoulous had provided of her attacker. He was brought to the Second District police station and placed in an interrogation room. There he remained, handcuffed to his chair except when he was allowed to use the bathroom, for the next thirteen hours. For much of that time, amounting to some nine to ten hours in all, Dorsey was left alone in the room, but at intervals throughout the night and into the early morning, four investigators — lead Detective Michael Ross and Detectives Joseph Crespo, Keith Tabron, and Robert Thompson — took turns interrogating him. They continued to do so despite Dorsey’s calls for a halt to the questioning and his requests for a lawyer. Finally, the next morning, they moved Dorsey, who still had not incriminated himself, to a holding cell, where he was allowed to rest pending the anticipated resumption of his interrogation on Sunday afternoon. Approximately seven hours later, before the detectives returned to question him again, Dorsey asked to talk to the police, saying he wanted to confess. He was brought back to the interrogation room. There he admitted to Crespo and a fifth investigator, Sergeant James Young, that he had robbed Ms. Fotopoulous.

Dorsey moved to suppress his confession as having been taken in violation of his Fifth Amendment rights. After a hearing before Judge Gardner, at which the detectives and Dorsey testified and the recordings of Dorsey’s interrogations were introduced, his motion was denied. The government introduced the hour-long tape of Dorsey’s confession in evidence against him at trial.

Given the nature of the legal issues before us, it is necessary to describe Dorsey’s interrogations in considerable detail.⁷

A. Inception of the Interrogation: Dorsey Waives His Rights and Is Questioned About His Girlfriend’s Domestic Violence Complaint

Dorsey’s interrogation commenced at about 7:30 p.m. on Saturday night. Detective Ross informed Dorsey that he was there to be questioned, “initially,” about an incident involving his girlfriend, Diane Bush. Ross would not “go into it,” he said, until after he had advised Dorsey of his rights and Dorsey had had something to eat. Ross inquired whether Dorsey was under the influence of drugs or alcohol. Dorsey responded that he had been drinking and said he last had consumed alcohol — two cans of beer — at around 10:00 a.m. that morning. Ross confirmed that Dorsey was not drunk and understood “everything we’re talking about.” Detective Crespo, whom Dorsey had known for “a long time,” brought in some food from McDonald’s. Ross and Crespo then left Dorsey alone so he could eat.

At 8:25 p.m., Ross returned with Detective Tabron. Ross introduced Tabron as the detective who would tell Dorsey why he was being charged after they advised him of his Miranda rights. Dorsey read through the standard PD-47 advice-of-rights card, commented that he was “used to” it,⁸ and agreed to answer the detectives’ questions without a lawyer present. Tabron then started asking Dorsey about his girlfriend. Dorsey said he did not want to talk about her, but Tabron explained that “the reason I’m here” was to investigate the report of an altercation between Dorsey and his girlfriend on May 3. Neither then nor for some time thereafter did the detectives mention the robbery of Ms. Fotopoulous.

Disregarding Dorsey’s expressed wish not to talk about his girlfriend,⁹ Tabron and Ross proceeded to ask him numerous questions relating to the domestic violence report. After a while, however, Ross started questioning Dorsey about where he was at the time of the Fotopoulous robbery on May 3 and the clothing he was wearing that day. Dorsey denied having been in Foggy Bottom or having camouflage pants or other clothing of the type worn by Fotopoulous’s assailant. He stuck with those denials even when Ross told him he had witnesses who contradicted him, showed him a still photo from the surveillance video of the robbery,¹⁰ and said that DNA had been deposited at the location of “this assault down in Foggy Bottom.”¹¹ Ross repeatedly accused Dorsey of lying. He observed that Dorsey was “sweating like a son of a gun”; Dorsey explained that it was because he was an alcoholic and had not had anything to drink since that morning.

At one point, Ross suggested that he could have someone take a sample of Dorsey’s DNA to compare it with the “DNA that was left on the scene.”¹² Dorsey responded that he would be willing to do that if he had a lawyer. Saying he might be able to get a lawyer for Dorsey, Ross, accompanied by Tabron, left the room. While they were out, Crespo came in and talked with Dorsey for a few minutes.

Dorsey, expressing frustration at what Ross and Tabron were “trying to do,” asserted to Crespo that he had been telling the truth about not having been in the Foggy Bottom area. Crespo responded that when he and his partner saw “that video,” they “thought it’s got to be [Dorsey].” After recalling how he had given Dorsey breaks in the past (mainly by tolerating Dorsey’s panhandling), Crespo said that “if there’s somebody you’re going to talk to, I hope it would be me.” He and Dorsey had a “mutual respect,” Crespo said, adding, “I honestly think you made a mistake. I honestly think that if you’re going to try to feel better about what’s probably going on in your head, if there’s someone you’re going to talk to, it should be me.” Dorsey denied that he had anything to reveal. Crespo then asked Dorsey about his drinking. Dorsey said he “drinks every day.... I got to get a drink, because I get the shakings. I got the shakes in the morning, so I can’t even eat, you know.”

At this point, Detective Ross returned. Before leaving, Crespo assured Dorsey that Ross was “a good man,” told him “there’s things that you need to talk about,” and again recounted how he “saw the video” and recognized Dorsey.

B. Dorsey Tries to End the Interrogation

It was about 9:40 p.m. when Ross reentered the room. After confirming that Dorsey’s request for a lawyer was limited to DNA testing and that he was not invoking his right to counsel during the interrogation,¹³ Ross warned Dorsey to “get a tissue and get ready to wipe, because I’m getting ready to go at you hard.” Over the next half hour or so, Ross pressed Dorsey to admit various potentially incriminating details, including his possession of a backpack, his use of a bicycle, a supposed injury to his hand, and his presence in the Foggy Bottom area. Ross repeatedly accused Dorsey of lying. He briefly appealed to Dorsey’s religious beliefs (“[Y]ou still have a soul and a heart, right?”) and his feelings about his mother, comparing her to the woman in the photograph from the surveillance video (“You wouldn’t want to see anything happen to your mother, would you? ... So don’t you think that’s somebody’s mother?”). Ross also noted that Dorsey was “sweating again” and asked him why (“I’m cool as a cucumber, you sweating. Why you sweating?”). Ross laughed when Dorsey answered, “I need a drink.... I didn’t get my drink today. Shit. I’m — shit, man, I’m shaking.”

Around 10 p.m., Ross for the first time explicitly accused Dorsey of having robbed Ms. Fotopoulous in the Foggy Bottom area: “I’m going to tell you what you did. You robbed a[n] old woman. You followed her home, then you robbed her.” Saying the robber’s identity could be proved through DNA and fingerprint evidence,¹⁴ Ross invited Dorsey to tell him his “version of what happened.” Dorsey denied having robbed anyone and said, “Let’s go to court.... I don’t know what you talking about.... Take me back there [i.e., to the cellblock], and we’ll go to court.”

Ross continued to try to persuade Dorsey to confess to the robbery. Dorsey again asked to be returned to the “lockup,” saying he was tired and wanted to “[g]o back there and go to sleep, man [and][g]o to court Monday.” Ross asked if Dorsey was in a “rush” to get back to the lockup. Dorsey said, ‘Yeah,” and Ross promised, “We’ll be done in a little while.” But Ross did not stop interrogating Dorsey. After leaving the room and returning a few minutes later, Ross told Dorsey that tissues he had been using to wipe the sweat from his forehead were “on their way to Quantico” for DNA analysis.¹⁵ Dorsey continued to express his wish to “[j]ust go to court.” Ross repeated that they needed to have “closure” and said “we’re going to go to court one way or another.... The question is, how much time we want, a little or a lot?” Ross urged Dorsey to tell his side of the story and suggested that he was “out of control because of some drugs” and “did something stupid.” Dorsey denied that. Ross warned him that “the wall’s closing in” and it was “time for [Dorsey] to do the right thing.” Ross asked Dorsey if he really wanted to go into a courtroom, face the evidence, and “roll the dice.” Dorsey insisted that he did. Ross told him he “did a terrible job lying tonight” and recited some of the incriminating evidence. Dorsey continued to insist he was innocent and said, ‘You’re playing with me.... [Yjou’ll find out when we go to court.”

Several times during the interrogation, Ross left the room and returned with additional information contradicting Dorsey (e.g., “I found Randy and Randy said you do wear that kind of hat I was asking you about.”). Ross told Dorsey he was “building a house” of evidence against him and that each time he left, he was getting “some more bricks.” In response to one of those remarks, at approximately 11:10 p.m., Dorsey again asked to “go back [to the ' cellblock] to sleep. Take me back now.... Take me back there and put me [indiscernible].” Judge Gardner later found that Dorsey unambiguously invoked his Fifth Amendment right to remain silent at this point.

C. “Shaking Like a Leaf”

Telling Dorsey to “[l]ay back in the chair and relax” because he would have “a minute to sleep,” Ross briefly left the interrogation room to obtain a paper jumpsuit for him. Upon returning, Ross discovered that Dorsey had urinated on himself. Ross took Dorsey’s soiled clothes and gave him the jumpsuit. Saying it would be cold in the cellblock, Dorsey asked to keep his shirt, but Ross said he was seizing it as evidence “[b]eeause your perspiration’s in it.” Dorsey protested in vain — Ross told him, ‘You don’t get the choice. I decide.” When Dorsey still was slow to remove his shirt, Ross commented that “[t]hat DNA must’ve really scared you, man.” Ross also took Dorsey’s shoes. Although Ross promised to bring him paper shoes to wear instead, he did not do so despite Dorsey’s repeated requests for them throughout the night.

After seizing Dorsey’s clothing, Ross told him to wait while he went out to “build some bricks.” Dorsey again asked to be taken back to the cellblock so he could sleep. Ross told him to lie down and sleep “on the ground” in the interrogation room, while Dorsey was still handcuffed to his chair, but Dorsey repeated that he wanted to go back to his cell. Ross observed that Dorsey was “shaking like a leaf.” “I think you want to talk to me,” Ross added. Dorsey denied it. Ross left the room and Dorsey, sitting there alone, began mumbling to himself (“Oh, my God. Bitch-ass dude, man. Shit, man-Oh, shit, man.”). When Ross came back a few moments later, Dorsey once again asked to be returned to his cell so that he could sleep. Ross responded that the cellblock was “full right now,” then said he would take Dorsey there “in a minute,” and finally told Dorsey, “I’m not ready to take you back there yet.” This exchange took place around midnight.

For the next two hours or so, Dorsey was left mostly alone in the interrogation room.¹⁶ He spent some of that time lying on the floor, still handcuffed to his chair. During this period he was in evident distress, mumbling to himself from time to time. When another detective checked on him, Dorsey asked for a cigarette and remarked that Ross was “trying everything in the book.” “I don’t know what he trying now,” Dorsey continued, “I don’t know what’s wrong with [Ross].” The detective responded that Dorsey was “messing up” and “mak[ing] the wrong decision” because “we got everything, man.”¹⁷

D. Detective Thompson Joins the Interrogation

At about 1:45 a.m., Ross returned with Detective Thompson. Ross told Dorsey there were “a couple more things we need to talk to you about,” after which Dorsey could “get a little sleep.” Thompson then took the lead, questioning Dorsey about matters already covered by Ross, including the identity of the robber shown on the videotape, whether Dorsey had altered his appearance following the robbery, whether he wore the same type of hat as the robber, his relations with his girlfriend, and other subjects. By this point, Dorsey was visibly fatigued and mumbling his answers. When Thompson pressed Dorsey about the lies he allegedly had told, Dorsey responded, “I didn’t say that.... I don’t want to talk about it.” Thompson and Ross continued to interrogate Dorsey. Moments later, the following exchange took place:

BY DETECTIVE THOMPSON:

Q. Jimmy, when are you going to get behind these lies, man? When you going to start—

A. Take me back (indiscernible)—

Q. You know, I mean, what happened, I mean, it was bad, okay? It was bad, we all agree on it. But, you know, this whole thing is up here. We want to, we want to bring it down.

A. (Indiscernible) go to sleep now. Take me in the back, lock me up.

Q. I know you want to get this (indiscernible) off your chest. I know that.

DETECTIVE ROSS. It ain’t going to go away, Jimmy.

Q. Any decent person would want to get this off their chest, would you agree? A. Huh?

Q. Any decent person would want to get this off their chest.

A. Let me do it when I go to court.

E. “We’ll Take a Run at This Tomorrow After You Get a Few Hours’ Sleep”

After some additional questioning, and further unsuccessful requests by Dorsey to be allowed to “go to sleep,” Ross said, “Why don’t we let you get a few hours’ sleep? We’ll take a run at this tomorrow after you get a few hours’ sleep.” Dorsey asked if he was being taken “downstairs.” Ross said, “Yeah, I’ll ask them to put you in a cell, is that okay? You want to do that? Because it ain’t going to go away, Jimmy.” Dorsey murmured “... cellblock now and just go lay down.” Ross said, “Okay. I’m going to let you rest. It’s 2:00 in the morning. I’m going to take a break and let you get some rest, okay?”

Next, however, Thompson and Ross asked Dorsey to let them examine his hands. As they did so, Thompson asked Dorsey whether he had ever broken his hand, and Ross commented that “[y]ou can see it in the videotape.” Ross said he was “[tjrying to help you, Jimmy.” He and Thompson then agreed that it was “time for [Dorsey] to get some rest.” At approximately 2:10 a.m., the two detectives left the room.

F. Detective Thompson Tells Dorsey How to “Minimize This Shit”

As he waited alone for someone to escort him to the cellblock, Dorsey again began mumbling and cursing to himself. In about twenty minutes, he called out and asked if he could make a phone call to Diane (his girlfriend). This request was denied.

Moments later, Detective Thompson reentered the room. Instead of taking Dorsey to his cell, Thompson commenced another round of questioning. Dorsey said that he was “tired as shit, man,” and Thompson brought him some coffee. Thompson then began by asking Dorsey if he wanted to call his mother to wish her a happy Mother’s Day. Next, Thompson told Dorsey that he was going to find Diane and arrest her because she was “a wanted person.” Dorsey said Thompson could not cross into another district to get her; disagreeing, Thompson commented that he knew Dorsey did not want the police going into his room. “Ain’t got nothing in there,” Dorsey responded.

Then Thompson told Dorsey he was going to show him how to “try to minimize this shit” because “we know it’s a high profile case” and “a lot of people want to see it closed.” “If you were me,” Thompson said, “I would take the opportunity to kind of man up to it and say, hey, you know, I was drinking, I was, you know, I was on drugs or something” and “show some remorse.” This was “the best route to take,” Thompson added, because “we’re trying to minimize it” and “right now, you got, you got the perfect opportunity to minimize.” Thompson urged Dorsey that this was “something you should think about.”

Dorsey replied that he could “do that in court.” Thompson tried to dissuade Dorsey from taking that chance: “[S]ometimes you go to court,” Thompson said, “and then, you know, all the facts and everything’s stacked up against you and you try to fight it, you know what happens.” “[Y]ou telling me you okay with going to jail?” Thompson asked. Dorsey answered, “No.” In further back-and-forth, Thompson tried to assure Dorsey that, if he would “[m]an up,” his situation was not as hopeless as he might think. Dorsey told Thompson his “life [was] pretty much done, anyway,” and “if I lose, I lose. I ain’t getting out anyway, so what the hell. It’s a high profile case like you said, man, so, you know (indiscernible) give me about 70, 80 years, anyway, so what the hell.” But Thompson told Dorsey he could avoid a long prison sentence (“[F]ollow me on this”) by saying he was on drugs and drinking and “you just really weren’t in your right mind” — though Dorsey responded that this was not so¹⁸ — and “go do yourself a little stretch [in jail], show them that you can be rehabilitated.” Thompson explained that “it’s really not about punishment anymore. It [sic ] was a time that ... jail was all about punishment. But now they do, they’re going to rehabilitation. So, you know, you go do yourself a little stretch, show them that you can be rehabilitated.”

Thompson then told Dorsey, “[t]he way I look at shit, in every negative there’s a positive. If you get [a battery] man, it’s a negative side and it’s a positive side.... [R]ight now you’re on the negative end ... [but] if you work the shit right you flip it on around to the positive side.... Right now in this room, right here today, you got a chance to flip this shit around.” Dorsey responded that there were “the courts to deal with that,” and he wanted this case to go to court “[s]o you all stop messing with me.” But Thompson persisted, telling Dorsey he did not want this particular “real strong” case to go to court. “[W]hen this case goes to court,” Thompson stated, “we’re going to have a nice strong case against you. A real strong case. We’re going to have witnesses. We’re going to have pictures. We’re going to have DNA evidence. We’re going to have all kinds of shit.” Dorsey should plead guilty, Thompson advised him, “so all that shit would not have to be shown,” and then “it would be just like a robbery, a straight robbery.... End of story. Then all that other shit don’t come in.”

G. Dorsey Invokes His Right to Counsel; “You Don’t Want That,” Detective Thompson Tells Him

At approximately 2:51 a.m., Dorsey responded to Thompson’s advice by telling him, “I want to talk — I need to talk to a lawyer now. I’ve been in this joint now how long now [indiscernible]?”¹⁹ Thompson said, “you don’t want, you don’t want that. Only a fool would want a judge to see all this shit. You know?” But Dorsey insisted, saying, “I want to get me charged.”

Thompson refused to quit. Observing that Dorsey was “nervous” and “sweating like a pig,” he urged Dorsey to call his mother and ask her to pray for him, which would “set [his] conscience straight.” Then, Thompson said, Dorsey should “talk to me, own up to this shit.” Dorsey reiterated that he was “going to tell the court my side ..., the same thing I told you all ..., [and] let the court deal with it.” Thompson countered that “the court is not going to be as sympathetic as I am” because this was such a “high profile case,” one “that everybody’s outraged about.” Dorsey replied, “That’s why I’m going to go to court.”

Further exchanges followed. Dorsey’s own mother would tell him to confess, Thompson said; in fact, he added, Dorsey “could not pick a better time to own up to this shit, because it’s Mother’s Day.” Thompson asked Dorsey if his mother had ever been robbed and told him “you want people to look at you as ... a compassionate guy” who got himself in trouble because he “maybe has a few problems.” But Dorsey repeatedly told Thompson he wanted to go to court.

Thompson said he would ask Detective Ross to come back into the room. Dorsey protested, “I just want to go to sleep. I don’t want to fuck with him, man. I want to go to sleep-I’m tired. I’ve been up now — how long I’ve been sitting on this chair. I want to lay down and go to sleep now.” Thompson asked Dorsey if he wanted to prop his feet up in the chair; Dorsey said no, he wanted to go down to the cellbloek and lie down, and he would not talk any more. To Thompson’s proposal that they “take a little break, come back in,” Dorsey reiterated, “I don’t want to talk no more. I’m not saying nothing else.” Thompson said he still wanted Dorsey to give him “a full statement as to what happened.” Dorsey replied, “Nah, I already told you, I already told you that. I ain’t — I’m just want to lay down. I want to lay down. You won’t take me back, you all (indiscernible) that’s why I want to go to court_I should of just got a lawyer.” Again, Thompson encouraged Dorsey to tell his side of the story, and again Dorsey refused. “I just want to lay down and go to sleep,” Dorsey said. “I’ve been sitting up in this damn chair, man.” He pleaded with Thompson to be taken down to the cellbloek, saying, “I just want to lay, I just want to lay down. I want to lay down.”

At around 3:00 a.m., Thompson left the interrogation room. He returned a few minutes later to ask if Dorsey wanted to call his mother. Dorsey declined to do so and Thompson departed, leaving Dorsey to sit alone in the room for the better part of the next five hours. Dorsey spent some of this time with his head down on the table, some of it mumbling to himself, and some of it shifting around and trying to he down on the floor while still handcuffed to his chair. At around 4:45 a.m., Detective Ta-bron escorted him to the bathroom, and Dorsey asked when he would be taken to the cellbloek. “When we finish up what we have to do,” Tabron answered.

H. “They Going to Up the Charges Unless You Tell the Truth. The Best Hope You Got Right Now Is to Show Remorse and Move On”

At 8:06 a.m., Ross and Tabron returned. Stating that he knew Dorsey was “ready to go lay down” and that “it’s been a long day for everybody,” Ross showed Dorsey the return on a search warrant the police had executed that morning at the room Dorsey rented. The return showed that the police had found and seized camouflage pants (which Dorsey earlier had denied owning) and other items. Ross asked Dorsey whether he “still want[ed] to stay with [his] story” and claimed the return was “proof’ that Dorsey had lied to him earlier. Ross told Dorsey he had better tell the truth now and start showing remorse because his “whole story [was] falling apart”:

The jig is up, okay? There’s no reason to keep lying. All you need to do now is explain to me, you know, some things went bad, I was tired. Tell the truth, that’s all I’m asking. Things happen, you know. Remorse is what you need to do now. I made a mistake, I need drug treatment....

The whole story is falling apart, okay? All I can do is go down there and represent to the United States Attorney you didn’t mean to hurt that lady, you know, if that’s what you want to say. But you know the jury could — you’ve seen the videotape on TV. You don’t want to roll the dice on something like this.

Ross claimed he had Dorsey “[fjive ways to Sunday” and mentioned he had found an eyewitness to the robbery — the driver of a “white car that came out the driveway when you were doing your work.” And then Ross delivered a warning:

Jimmy, look at me, man. You’ve been around, I’ve been around. They [ie., the prosecutors] going to up the charges unless you tell the truth. The best hope you got right now is to show remorse and move on. I’m telling you the truth. Think about it. Think about it. (Emphasis added.)

Dorsey responded that he wanted to lie down and go to sleep. Ross, joined by Tabron, returned to the subject of the witness in the white car. Tabron told Dorsey, “You might have missed that white car coming out the van port, but you did look back a couple times, you know, to check and see, you know, if anybody was behind you.” Then Ross, who had gone out to meet with someone, came back and told Dorsey to lower his hood so that the driver of the white car could “take a look” at him. The witness purportedly walked by the room to see if he could identify Dorsey.²⁰

The questioning then resumed. Tabron asked Dorsey to tell him “what happened.” Dorsey responded that he would “hear [about] it in the courtroom when we go.” Tabron asked for “a small scenario of what your story’s going to be.” Dorsey answered, “I don’t know. I’m ready to go back to sleep.” For the next several minutes, during which Thompson returned and joined in posing questions, Dorsey repeated that he needed sleep, he did not want to talk, and he was “done talking.” Finally, Ross agreed to take Dorsey to his cell. As he was led out of the room at approximately 8:21 a.m. on Sunday, May 8, Thompson said to him, “All right, bro. Good luck, man.”

I. Dorsey “Gets It Off His Chest” to “Take the Robbery”

Dorsey was taken to an individual cell. He remained there, by himself, until Sunday afternoon. During that time, he slept for about three hours and (in the words of the prosecutor who cross-examined Dorsey at the suppression hearing) “had a chance to think about what was going on.” ²¹ Because Dorsey still had not confessed to the robbery of Ms. Fotopoulous, the detectives planned to resume his interrogation later that day. Dorsey may have realized that he would be facing further questioning because Ross earlier had told him the detectives would “take a run at this tomorrow after you get a few hours’ sleep.”

Between 3:30 and 4:30 p.m., however (according to the government’s witnesses at the suppression hearing, whose testimony Judge Gardner credited over that of Dorsey), Dorsey called out from his cell and said he wanted to speak with Ross and confess. Dorsey was taken to an interview room while officers tried to reach Ross, who had gone home. While he was waiting in the room, Dorsey noticed Detective Crespo walking by the open door. Dorsey called to Crespo and again said that he wanted to confess. (Dorsey’s calls and the police responses were not videotaped.)

Dorsey then was moved to the room in which he had been questioned the previous night. There he was interrogated (again on videotape) by Crespo and by Sergeant James Young, who had arrived that afternoon from the Metropolitan Police Department’s Major Case Unit to help with Dorsey’s questioning. The detectives did not re-advise Dorsey of his Miranda rights or ask him if he would waive those rights.²²

At the outset, Crespo stated that Dorsey had called to him as he walked by, and “you obviously said you want to talk about this. Okay?” Dorsey said nothing, and Crespo continued by asking him to “be specific” and “tell us exactly what happened.” Dorsey then proceeded to confess to the robbery and assault on Ms. Foto-poulous.²³ In the videotape of this Sunday afternoon interrogation, as Judge Gardner later observed in ruling on his motion, Dorsey appears calm and rested.

Dorsey began by explaining that, a week before the robbery, Fotopoulous had angered him by refusing to give him change for a twenty-dollar bill and screaming at him to get away from her cart. (“She got all smart and got foul, you know.”) On the morning of the robbery, Dorsey said, a flower vendor he knew mocked him for having let Fotopoulous “talk to [him] like that” and encouraged him to get even by robbing her. Dorsey said he was “a little tipsy” at the time, having consumed a “whole pint” of vodka that morning, and he was persuaded to do what the flower vendor suggested. He followed Fotopoulous home, confronted her in an alley, “pushed” her and knocked her down, and “asked her for her money.” She resisted him and tried to get up, grabbing his wrist and refusing to let go. Dorsey held her down with his foot and hit her, grabbed her money out of her jacket, and ran.²⁴ He used the stolen money (around $300) to pay his rent.

Dorsey insisted that he had not intended to hit Fotopoulous. He said he did so only because he was “mad [that he] couldn’t get the money” from her. He repeatedly stated that he had not realized Fotopoulous was “that old”²⁵ and claimed he had never robbed a woman before. He said he felt bad about having assaulted Fotopoulous. When Young asked him if he felt “remorseful,” Dorsey remarked, “If that would have happened to my mother, man.... ”

In response to the detectives’ questions, Dorsey agreed that they had not “forced anything” on him or “made [him] do anything” against his will.²⁶ When Young asked what made him decide to confess, Dorsey said he knew he would “probably never get out [of jail] again,” so “I might as well just go on and come clean with you, you know, just get it off my chest.” A few minutes later, though, Dorsey declared that he knew the police had “no case” against him and he “probably” could have beaten the charge in court.

After he made those conflicting statements, Dorsey manifested a keen interest in minimizing his exposure to incarceration. When the interrogation was almost finished, Crespo thanked Dorsey, saying, “Well, Jimmy, I’ve known you a long time. I appreciate your talking to us.” A few moments later, Young left the room. Alone with Crespo, Dorsey said, “So ... don’t put no whole lot of extra charges, you know.... I’m going to take the robbery, you know.” Crespo responded that he was “not in charge of what happens to you.” Dorsey acknowledged this but continued to voice concern over the charges he would be facing now that he had “come clean.” Crespo reiterated that it was “not my job to determine what happens to you.” “I know that,” Dorsey answered, but he repeated that he did not “need [a] whole lot of charges, you know.... I’ll take, I’ll take, I’ll take the robbery you know.... [Y]ou know I don’t need the assault and all that other stuff. I just want to deal with the robbery.” Crespo indicated that he understood and briefly left the room. After he returned to wrap up, Crespo said to Dorsey, “Like I said, I’ve known you a long time, and you’ve got to feel better about just getting it off your chest.” Dorsey said, ‘Yeah,” but then returned to the subject of his “tak[ing] the robbery.” Crespo said, “I got you” and changed the subject.

J. The Ruling on the Motion to Suppress

In argument before Judge Gardner, the government conceded that Dorsey had invoked his Fifth Amendment right to counsel on Sunday morning when he declared at around 2:51 a.m. that he “need[ed] to talk to a lawyer now.” Dorsey contended that he had asserted his Fifth Amendment right to remain silent earlier, when he said he did not want to talk about Diane and again when he repeatedly asked to be returned to his cell to get some sleep. Ultimately, Judge Gardner ruled that Dorsey’s first unambiguous invocation of his Fifth Amendment right to cut off all questioning and remain silent occurred when he asked at around 11:10 p.m. on Saturday night to be taken back “now” to the cellblock and allowed to sleep.²⁷ From that point on, the judge stated, the detectives were “obligated to cease the discussion”; and because they violated Dorsey’s constitutional rights by continuing to interrogate him, his subsequent statements during his overnight interrogation had to be suppressed and could not be introduced by the government in its case-in-chief at trial.²⁸

Judge Gardner further ruled that, after there had been “a significant break in the questioning,” Dorsey “initiated” the second round of his interrogation when he asked to speak to Ross and Crespo on Sunday afternoon. As previously mentioned,²⁹ the judge disbelieved Dorsey’s testimony that he never indicated he wanted to confess. Moreover, Judge Gardner concluded, the initiation was not the product of “coercion” or “subterfuge” by the police but, rather, was motivated by the feelings of remorse Dorsey expressed to the police when he confessed: “[H]e didn’t know that lady was that old,” and “he wanted to get it off his chest.” In reaching these conclusions, the judge did not address whether Dorsey’s feelings of remorse and resultant decision to confess were influenced by the interrogation that followed his request for counsel or whether the requirements of Edwards v. Arizona were satisfied regardless of such influence.

Turning next to the question of whether Dorsey validly waived his Fifth Amendment rights and voluntarily confessed, Judge Gardner did not discuss Crespo and Young’s failure to re-advise Dorsey of his Fifth Amendment rights or obtain an express waiver from him before they resumed his interrogation; nor did the judge consider whether the possibility of a valid waiver was undermined by the detectives’ earlier Miranda violations. The judge instead based his determination largely on Dorsey’s demeanor during his confession on Sunday afternoon. After viewing the videotape, the judge found that Dorsey “was talking just as matter [of] factly and just as plain and just as undisturbed as anybody I have ever [seen].” The judge saw no “hint” of coercion. “That man was sitting there telling that story for the reason that he posited,” the judge said. “He wanted to get it off his chest and he didn’t know that woman was so old and I believe that is why he made the statement that he made, unprompted, uncoerced, unforced.” Furthermore, Judge Gardner found, Dorsey knew the police could not determine his sentence or “do anything for him downtown” other than “tell the prosecutor” about his cooperation. With his experience, the judge said, Dorsey understood the criminal justice system “well enough to know what he was doing”; he “knew about a waiver” because he had signed the rights card at the beginning of the interrogation on Saturday night, and he had a substantial criminal record.

Judge Gardner concluded that Dorsey voluntarily initiated the resumption of his interrogation on Sunday afternoon, validly waived his Fifth Amendment rights, and freely confessed. The judge therefore denied Dorsey’s motion to suppress his confession.

II. Discussion

In reviewing the denial of a motion to suppress statements on constitutional grounds, we must defer to the trial court’s findings of historical fact as long as they are not clearly erroneous, and we must view the facts and the reasonable inferences that may be drawn from them in the light most favorable to sustaining the court’s ruling.³⁰ However, our review of the trial court’s legal conclusions is de novo.31 Thus, whether the record shows that Dorsey validly “initiated” further discussion with the police within the meaning of Edwards is a legal question subject to our de novo examination.³² The same is true with respect to whether Dorsey validly waived his Fifth Amendment rights and voluntarily confessed.³³

A. Miranda and Edwards

In Miranda v. Arizona,³⁴ the Supreme Court held that police must follow certain procedures to protect a suspect’s Fifth Amendment privilege against compelled self-incrimination from the “inherently compelling pressures” of custodial interrogation.³⁵ Unless those procedures are followed, the Court stated, “ ‘no statement obtained from the defendant can truly be the product of his free choice.’ ”³⁶ In brief, to “counteract the coercive pressure” of custodial interrogation, the police must inform a suspect before any questioning that he has both a right to remain silent and a right to the presence of an attorney.³⁷ If, “at any time prior to or during questioning,” the suspect invokes his right to remain silent, “the interrogation must cease.”³⁸ If the suspect requests counsel, “the interrogation must cease until an attorney is present.”³⁹

Furthermore, “[e]ven absent” the suspect’s invocation of these Fifth Amendment rights, his “statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [his] rights’ when making the statement.”⁴⁰ For a waiver to be valid, it “must be ‘voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,’ and ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’ ”⁴¹ “Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.”⁴² Thus, “any evidence that the [suspect] was threatened, tricked, or cajoled into a waiver will, of course, show that [he] did not voluntarily waive his privilege.” ⁴³ As to the knowledge component of a valid waiver, the suspect must have been “aware that his right to remain silent would not dissipate after a certain amount of time and that police would have to honor his right to be silent and his right to counsel during the whole course of interrogation.”⁴⁴ In other words, “the suspect [must have] know[n] that [his] Miranda rights [could] be invoked at any time.”⁴⁵ And if the suspect was questioned after he declined to talk to the police without counsel, “ ‘[t]he record must show ... that [he] was offered counsel but intelligently and understandingly rejected the offer. Anything else is not waiver.’ ”⁴⁶

Miranda underscores the importance of the suspect’s right to terminate his interrogation at any time: “Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”⁴⁷ In Michigan v. Mosley,⁴⁸ the Supreme Court re-emphasized that the suspect’s “right to cut off questioning” is the “critical safeguard” in Miranda’s framework because “[t]he requirement that law enforcement authorities must respect a person’s exercise of that option” is what effectively serves to “counteract[ ] the coercive pressures of the custodial setting.”⁴⁹ Accordingly, the Court concluded, “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ”⁵⁰

In Edwards v. Arizona,⁵¹ the Supreme Court focused on the special significance of a suspect’s request to have counsel present during questioning. The Court concluded that even the requirement of a knowing, intelligent, and voluntary waiver is not sufficient by itself to protect a suspect’s Fifth Amendment right against compelled self-incrimination once the suspect has asked for counsel; in that situation, “additional safeguards are necessary.”⁵² The Court accordingly added what it subsequently called a “second layer of prophylaxis,”⁵³ holding that once a suspect in custody has “expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the [suspect] himself initiates further communication, exchanges, or conversations with the police.”⁵⁴

“If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards.”⁵⁵ And even if the suspect, after having terminated the interrogation by invoking his right to counsel, later chooses to initiate further discussion about the criminal investigation,⁵⁶ the police must obtain “a valid waiver of the right to counsel and the right to silence” before resuming the interrogation.⁵⁷ In short, under Edwards, “if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.”⁵⁸

The rationale of Edwards is that, “to a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling.”⁵⁹ As the Court elaborated in Shatzer, “[i]t is easy to believe that a suspect may be coerced or badgered into abandoning his earlier refusal to be questioned without counsel in the paradigm Edwards case, in which the suspect has been arrested for a particular crime and is held in uninterrupted pretrial custody while that crime is being actively investigated.” ⁶⁰ Accordingly, “[t]he Edwards presumption of involuntariness” is intended to “ensure[] that police will not take advantage of the mounting coercive pressures of prolonged police custody, by repeatedly attempting to question a suspect who previously requested counsel until the suspect is badgered into submission.”⁶¹

The suspect-initiation rule shares the same “fundamental purpose!,] to preserve the integrity of an accused’s choice to communicate with police only through counsel, by preventing police from badgering a defendant into waiving his previously asserted Miranda rights.”⁶² Initiation by the suspect is meaningful where the suspect “knows from his earlier experience that he need only demand counsel to bring the interrogation to a halt” because then “[h]is change of heart is less likely attributable to ‘badgering’ than it is to” uncoerced deliberation on his part.⁶³ But that is not so where the police have disregarded the suspect’s assertion of his Fifth Amendment right to counsel by “persisting in repeated efforts to wear down his resistance and make him change his mind.”⁶⁴ Because such efforts convey to the suspect that he cannot halt his interrogation by demanding counsel, they render it likely that his subsequent expression of a willingness to engage in further discussions without a lawyer is the product of the impermissible badgering. If so, the suspect’s purported “initiation” does not mean what it is supposed to mean. It therefore does not satisfy Edwards’s preconditions for the resumption of the interrogation. As the Eleventh Circuit has put it,

Although Edwards permits further interrogation if the accused initiates the conversation, the validity of this ... logically depends on the accused being free from further interrogation. In other words, the “initiation” must come prior to the further interrogation; initiation only becomes an issue if the agents follow Edwards and cease interrogation upon a request for counsel.... Edwards would be rendered meaningless if agents were permitted to continue interrogation after the request for counsel, and then claim that the consequent response by the accused represented initiation and permitted a waiver of the asserted counsel right.[⁶⁵]

In short, as conceived by the Supreme Court in Edwards, suspect-initiation is not a mere formality. It is a necessary additional check against official overreaching— a check that can be furnished only if the initiation accurately reflects that the suspect was not pressured by the police to change his mind. Treating the “delayed product” of police badgering as a valid “initiation” would serve no purpose; it would exalt form over substance and thwart rather than implement the goal of the Court in Edwards.66

Therefore we reject, as inconsistent with Edwards, the government’s position that “the only relevant questions for the initiation part of an Edwards analysis are what the defendant did and what his words meant [and that ijnquiry into alleged police coercion belongs [only] in the second half of the analysis, which considers whether waiver was knowing, intelligent, and voluntary.” ⁶⁷ The Edwards Court adopted the supplemental suspect-initiation requirement in order to provide meaningful additional protection against the badgering tactic — beyond that provided by the requirement of a valid waiver — to suspects in custody who have asked for counsel. Under Edwards, police badgering must be relevant to whether the suspect made a valid initiation (as well as a valid waiver) because the initiation requirement cannot serve its purpose if the police can satisfy it by badgering the suspect into reopening a new round of questioning. And dismissing badgering as irrelevant to initiation not only would defeat what the Supreme Court sought to accomplish in Edwards, it would turn the initiation requirement on its head. Instead of preventing the police from badgering suspects who have requested counsel, the initiation rule would incentivize them to do so.⁶⁸

Our conclusion that a suspect’s delayed response to improper post-invocation custodial interrogation cannot be deemed a valid initiation under Edwards does not mean that a valid initiation is categorically impossible whenever the police have violated Edwards’s “bright-line prohibition” of such interrogation.⁶⁹ Although the Supreme Court has been receptive to the adoption of bright-line rules to implement Edwards,⁷⁰ we believe that a per se rule barring the government from ever showing a valid initiation following improper police questioning of a suspect in custody after a request for counsel would be overly broad, and we do not discern that it is required to effectuate Edwards.71 But the violation of Edwards does engender a cause-and-effect presumption that the government has the burden of overcoming if it is to reap the benefits when the suspect reopened the dialogue with the police. To show that the reopening constituted a valid initiation within the meaning of Edwards, the government must show that it was not reasonably attributable to the post-invocation questioning.⁷² This standard permits suspects the freedom to act on genuinely unbadgered impulses to talk with the police notwithstanding the violation of Edwards.

The government’s burden of proof is not an unreasonable one. We do not hold, as Judge Thompson implies, that in order to prevail the government must “ ‘totally eliminate the possibility' that something police officers improperly said or did, after a suspect invoked his Miranda rights, remained in his memory when he decided to resume speaking with police.”⁷³ The applicable standard of proof is simply a preponderance of the evidence⁷⁴; the question is causation, not whether all traces of the improper post-invocation questioning were wiped from the defendant’s mind. The impact of such questioning depends on the circumstances. To begin with, an Edwards violation may be inconsequential; the police may not have badgered the defendant at all, and their misstep may have been too trivial, marginal, or limited in scope and intensity to have had any plausible causative effect on the defendant. In some cases, moreover, the passage of time or a favorable change in the defendant’s circumstances may have diluted the impact of the violation or mooted its significance to the defendant.⁷⁵ Or the police may have taken effective curative measures to redress the Edwards violation and dispel its influence on the defendant⁷⁶ — for example, by substituting new interrogators who disavowed or corrected what the former interrogators improperly had said to the defendant; by re-advising the defendant of his Fifth Amendment rights and (especially) granting his request to confer with counsel; or by releasing the defendant from custody. An intervening event such as a communication with a third party also may have severed any connection between the violation and the defendant’s resumption of communication with the police.⁷⁷ Thus, while the government must shoulder the burden of proving that the suspect’s “initiation” was not the fruit of the Edwards violation, it is not an impossible task. Judge Reid’s fear that this requirement will “eviscerate[ ] the possibility of the suspect’s voluntary initiation of a conversation with police officers after a break in impermissible interrogation and an opportunity to rest and sleep away from the pressures of the interrogation room,” post at 1221, is unwarranted.

Moreover, our holding does not involve any “expansion of the Miranda and Edwards prophylactic rules,” as Judge Reid claims. Post at 115. Rather, we faithfully adhere to the dictates of Edwards and eschew the adoption of a novel and over-broad rule of any kind: We reject both a per se rule that a valid initiation is categorically impossible following an Edwards violation (which would be a new prophylactic rule) and a per se rule that Edwards’s initiation requirement is automatically satisfied as long as there was some hiatus between the improper post-invocation questioning and the suspect’s response to it. An inflexible rule of the latter kind must be rejected because a break does not necessarily dispel the impact of improper badgering on a suspect who has asked for an attorney. To hold that a delayed response to such badgering is a valid initiation as a matter of law, regardless of the circumstances surrounding the interrogation and the break, would constitute an unprecedented and unjustified contraction of the Edwards rule.⁷⁸

B. Whether Dorsey’s Request to Reopen Discussion with the Police Constituted a Valid Initiation Under Edwards

There is no question that the police improperly badgered Dorsey to confess after he asserted his Fifth Amendment right to counsel. Detective Thompson’s immediate response was to tell Dorsey, “you don’t want to do that” and that “[o]nly a fool would want a judge to see all this shit.” In the next five-and-one-half hours, Thompson, Ross and Tabron persisted in trying a variety of techniques to persuade Dorsey to give in and confess. They deprived him of needed sleep, ignored his evident physical discomfort and symptoms of alcohol withdrawal, and emphasized his powerlessness until they “finish[ed] up what [they] ha[d] to do.” They disparaged Dorsey’s desire to talk to a lawyer and to go to court, implying that counsel would give him bad advice and that he could not receive a fair trial. They told him to stop lying, presented him with additional incriminating facts (the search warrant return, the supposed eyewitness in the white car), and insisted that his “story” was “falling apart” as the evidence against him mounted to the point that Ross had him “[f]ive ways to Sunday.” Thompson said that he would be more “sympathetic” than a court would be in this “high profile case” that had made “everybody ... outraged.” He appealed to Dorsey’s “conscience” and his feelings for his mother (implicitly comparing her to the victim in this case by asking Dorsey if she ever had been robbed), encouraged him to call her, and opined that his mother herself would tell him to confess.

Dorsey’s “best hope,” Ross reiterated, was to show remorse. The detectives even suggested how he could do so. “[Y]ou want people to look at you as ... a compassionate guy [with] maybe a few problems,” Thompson advised. (Thompson previously had told Dorsey he could say he had been drinking or on drugs.⁷⁹) “All you need to do now,” Ross recommended, “is explain to me, you know, some things went bad, I was tired.... I made a mistake, I need drug treatment.... [Y]ou didn’t mean to hurt that lady, you know, if that’s what you want to say.” Ross reminded Dorsey of what was depicted on the videotape of the robbery and offered to “represent to the United States Attorney” that Dorsey did not mean to hurt Fotopoulous. And invoking both his and Dorsey’s experience with the criminal justice system, Ross warned Dorsey that the prosecutors would “up the charges” if he did not confess. “I’m telling you the truth,” Ross added, “Think about it, Think about it.”

This was badgering with a vengeance. The detectives did nothing to mitigate it. That they finally allowed Dorsey to sleep for a few hours and then “think about what was going on” was not calculated to dispel the influence of such intensive badgering. What, after all, was Dorsey expected to “think about” as he sat alone in his cell if not the barrage of blandishments and threats he had endured? In the few hours Dorsey was given to sit and stew in his cell, he continued to be “cut off from his normal life and companions, thrust into and isolated in an unfamiliar, police-dominated atmosphere, where his captors appear[ed] to control his fate.”⁸⁰ The common-sense premise of Miranda and Edwards is that the pressures of custodial interrogation only “increase as custody is prolonged.”⁸¹ And when Detective Crespo and Sergeant Young interviewed Dorsey on Sunday afternoon, they took no curative measures at all to counter the impact of the improper badgering Dorsey had endured. Indeed, Crespo and Young did not even take the trouble to re-advise Dorsey of his Miranda rights before they picked up where Ross and Thompson had left off.

Revealingly, Dorsey echoed the post-invocation badgering when he confessed. As Ross and Thompson had encouraged him to do, Dorsey expressed remorse and compassion, claiming he never meant to hit Fotopoulous and did not realize she was elderly. The detectives had compared Fo-topoulous to Dorsey’s mother; so did Dorsey (“If that would have happened to my mother, man_”). In line with another suggestion, Dorsey said he had been drinking and was intoxicated (“tipsy”) when he was persuaded to commit the robbery. Dorsey urgently repeated that he “just want[ed] to deal with the robbery” and did not “need the assault and all that other stuff’ that Ross had suggested he could avoid by confessing. And while at one moment Dorsey professed to believe the police had “no case” on him, he revealed how effectively Ross had persuaded him otherwise when he explained why he had decided to confess: because he knew he was never getting out of jail anyway— at least not unless he could just “take the robbery” ■ and avoid the other serious charges he was facing.⁸²

That Dorsey may have decided to confess out of genuine remorse, as Judge Gardner found, does not mean his initiation decision was unprompted by the post-invocation badgering. It only confirms the effectiveness of the detectives’ explicit, repeated appeals to Dorsey’s conscience. There is no evidence that Dorsey felt remorse or compassion before the detectives set to work to arouse such sentiments, or that his expressions of remorse were anything but the product of their improper efforts.

Our dissenting colleagues argue that Dorsey was not vulnerable to the detectives’ interrogation techniques because he was a “seasoned veteran” of criminal proceedings. Post at 1218-19, 1223-24. But Dorsey’s adoption of the detectives’ prompts in his confession belies the view that he was “impervious ... to the detectives’ questioning and cajoling.” Post at 1210. By focusing on the strength of the evidence against Dorsey, the outrage the case had generated, the hostile reaction Dorsey would confront in court, the punishment he could receive, and the benefits he would reap by coming clean and showing remorse, the detectives employed tactics calculated to be most persuasive to someone with Dorsey’s experience with criminal prosecution and incarceration.

In sum, the detectives violated Edwards by continuing to press Dorsey to confess after he invoked his right to counsel. The government’s burden was to overcome the presumption that Dorsey succumbed to that pressure when he decided to talk to Crespo and Young. We conclude that the government has not carried that burden. The record before us therefore does not permit a finding that Dorsey validly “initiated” the resumption of his interrogation within the meaning of Edwards after the post-invocation badgering he endured. For this reason, we hold, Dorsey’s confession should have been suppressed.

C. The Validity of Dorsey’s Purported Waiver of His Fifth Amendment Rights

Even if we were to posit that Dorsey’s request to speak with the detectives on Sunday constituted a valid initiation under Edwards, the admissibility of his responses to subsequent interrogation depended on whether the detectives then obtained a valid waiver from Dorsey of his Fifth Amendment rights to remain silent and to have counsel.⁸³ Although Dorsey previously had asserted those rights, Crespo and Young did not re-advise him or obtain an explicit waiver from him before they resumed his interrogation. On its face, this omission was in contravention of Edwards. It is immaterial that Crespo and Young may not have known that Dorsey had invoked his right to remain silent and requested counsel. “[0]fficers who interrogate a suspect after the suspect has invoked his right to counsel are charged with the knowledge of the prior invocation.”⁸⁴

By itself, though, the detectives’ failure to obtain an express waiver from Dorsey is not conclusive of our inquiry because, under some circumstances, an implied waiver may be found.⁸⁵ The government relies on the Supreme Court’s holding in Berghuis that “[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.”⁸⁶ Berghuis was a very different case from this one, however. That case did not involve a suspect who had asserted his rights to remain silent and to have counsel present or a second interrogation of the suspect following improper police badgering. These differences must not be ignored in applying Berghuis’s “general proposition” that, under benign circumstances, a valid waiver may be implied.⁸⁷ Even absent improper badgering, when the suspect has asserted his Fifth Amendment rights, one of the main factors bearing on whether the police have “scrupulously honored” those rights before interrogating him further is whether the police re-administered “full and complete Miranda warnings at the outset of the second interrogation,” so that the suspect was “reminded again that he could remain silent and could consult with a lawyer, and was carefully given a full and fair opportunity to exercise these options.” ⁸⁸ A failure by the police to take those steps and obtain an express waiver before resuming the interrogation is especially significant if the suspect asked specifically for counsel because that request in particular “raise[s] the presumption that [the suspect] is unable to proceed without a lawyer’s advice.”⁸⁹ We do not read Ber-ghuis as retreating from these principles. At a minimum, therefore, where a suspect has explicitly and unambiguously asserted his right to counsel, the absence of an equally explicit and unambiguous renouncement of that right will make it substantially more difficult for the government to show a valid waiver; all the more so if the record shows that the police badgered the suspect to abandon his rights.

In the present case, of course, the police did not “scrupulously honor” Dorsey’s Fifth Amendment rights. There is no dispute that Detectives Ross and Thompson badgered Dorsey with carrot and stick to waive his rights and confess after he futilely invoked his right to remain silent⁹⁰ and even after he asked for counsel. Their violations of Miranda were flagrant: Ross and Thompson persisted in questioning Dorsey and urging him to change his mind despite his repeated assertions of his constitutional rights; verbally abused him (e.g., by repeatedly calling him a liar); disparaged his request for counsel and a hearing in court as contrary to his best interests; misrepresented to him the benefits of confessing before consulting with counsel (e.g., telling Dorsey that he could plead to “a straight robbery” so that “all that other shit don’t come in”); threatened that the prosecutors would “up the charges” if he did not confess; exaggerated the strength of the evidence against him; and fed him what he should say to put himself in a more appealing light. To condone such tactics would be contrary to the principles of Miranda⁹¹ and Mosley.92 On the egregious facts of this case, and in the absence of an express waiver, the government has a difficult task indeed to establish, by a preponderance of the evidence,⁹³ that Dorsey validly waived his Fifth Amendment rights after the break in his interrogation.

A valid waiver, whether it is express or implied, has a cognitive as well as a volitional dimension: it must be knowing, intelligent, and voluntary. In evaluating whether the government has carried its burden, we begin by considering whether the detectives’ tactics disabled Dorsey from relinquishing his rights knowingly and intelligently.⁹⁴

1. Knowing and Intelligent

Judge Gardner found that Dorsey understood his rights and “knew about a waiver” because he had signed the rights card (at the beginning of the interrogation on Saturday night) and had substantial experience with the criminal justice system. The government similarly argues that Dorsey was “well acquainted with the rights card, as he himself noted”; he “never expressed confusion about his rights”; he “revealed his awareness of his rights” by his “initial waiver and later invocation”; and he “understood the consequences of waiving his rights,” namely that “anything he said could be used against him in court.”⁹⁵ The government further argues that Dorsey’s “refusal to confess and his insistence on going to court, even after the police ignored his invocation of rights, confirms that the police conduct did not shake his understanding.”⁹⁶

These arguments miss the essential point. Miranda is concerned with the here-and-now of a custodial interrogation, not with whether the suspect can pass an examination on constitutional criminal procedure. The Supreme Court held that a suspect must be “adequately and effectively apprised of his rights.”⁹⁷ To that end, the Court required “procedures that will warn a suspect in custody of his right to remain silent and which will assure the suspect that the exercise of that right will be honored.”⁹⁸ It is not enough that Dorsey was aware of his rights in the abstract and knew enough to try to assert them; every time he actually did assert his rights, his assertions were overridden and his rights were denied. Ross and Thompson thereby communicated to Dorsey that in this “high-profile” investigation, any attempts on his part to exercise his Miranda rights would be ignored. It was as if the detectives had told him explicitly that his Miranda rights were inoperative on this occasion. The government rejoins that while the detectives’ “response indicated to appellant that his rights were not being honored[,] ... [t]hey did not suggest that he had no rights to claim.”⁹⁹ But the Supreme Court rejected that distinction when it insisted on procedures that would “assure the suspect that the exercise of [his] right[s] will be honored.”¹⁰⁰ The Court appreciated that police actions speak louder than words. As Justice Stevens has put it: “When police have not honored an earlier commitment to provide a detainee with a lawyer, the detainee likely will ‘understan[d] his (expressed) wishes to have been ignored’ and ‘may well see further objection as futile....’”¹⁰¹ The prospect of obtaining a suspect’s knowing and intelligent waiver of his rights vanishes after the police have demonstrated that those rights were “hollow” from the start.¹⁰² In short, the government’s distinction is an illusory one: “A right that is not honored when invoked is no right at all.”¹⁰³

Furthermore, Ross and Thompson compounded the seriousness of their Miranda violations by disparaging and devaluing Dorsey’s rights — exhorting him that their assertion would work to his disadvantage while their relinquishment would benefit him. The detectives’ threats and assur-anees were designed to impair Dorsey’s ability to appreciate his rights and make a rational decision whether to assert them. Dorsey’s repeated statements to Crespo, after he confessed, that he would “take the robbery” demonstrate how effectively Ross and Thompson persuaded Dorsey of the quid pro quo he would receive for abandoning his insistence on remaining silent.

When Crespo and Young took over on Sunday afternoon, they did nothing to remedy the violation and devaluation of Dorsey’s rights. They did not re-advise Dorsey or tell him his rights would be respected if he changed his mind at any point and chose to terminate the questioning.¹⁰⁴ Nothing in the record supports a conclusion that Dorsey knew Crespo and Young would do what none of the other detectives had done before. Nor did Cres-po and Young undertake to correct the misimpressions conveyed by Ross and Thompson (at least not until after Dorsey had finished confessing, at which time Crespo deflated Dorsey’s expectations that the charges against him would be limited). Thus the record does not show that Dorsey understood he would not be penalized for exercising his rights or rewarded for relinquishing them. Accordingly, we hold that the government has not met its burden; a knowing and intelligent waiver by Dorsey of his Fifth Amendment rights cannot be found on the present record.

2. Voluntariness

Although we have concluded that the record does not show a knowing and intelligent waiver, we still must consider whether Dorsey was coerced. This is because “an involuntary statement is inadmissible at trial for any purpose, [while] voluntary statements are admissible to impeach a defendant’s trial testimony even if taken in violation of Miranda’s [and Edwards’s ] prescriptions.”¹⁰⁵

“The test for determining the voluntariness of specific statements ‘is whether, under the totality of the circumstances, the will of the [suspect] was overborne in such a way as to render his confession the product of coercion.’ ”¹⁰⁶ We consider the question of voluntariness on the present record to be exceedingly close.¹⁰⁷ As we have discussed, the detectives’ wrongful disregard of Dorsey’s rights and persistent badgering were unquestionably coercive in nature.¹⁰⁸ In this regard, we deem particularly troubling the detectives’ warnings to Dorsey that he would suffer adverse consequences if he insisted on consulting counsel and exercising his constitutional rights, their provision of dubious legal advice to sway Dorsey’s judgment, and their suggestions as to what story Dorsey could tell to minimize the gravity of his crimes. Such overreaching tactics must be condemned. “[Tjhere are no circumstances in which law enforcement officers may suggest that a suspect’s exercise of the right to remain silent may result in harsher treatment by a court or prosecutor,”¹⁰⁹ and law enforcement officers have no business encouraging a suspect to confess by feeding him fabricated facts to regurgitate.¹¹⁰ Had Dorsey given in and confessed during the first round of his interrogation, we would find it impossible to conclude that he made a voluntary waiver or confession.

Dorsey did not give in and confess during the first round, however, and he then had a break lasting several hours, during which he rested and could reflect on his situation. His physical discomfort was alleviated, and when he said he was hungry, he was provided with something to eat. He admitted in his suppression hearing testimony that he did not feel intimidated when he was in his cell. We cannot ignore these facts entirely, though for the same reasons that we discounted their significance in discussing whether Dorsey made a valid initiation under Edwards, we can attach but minimal significance to them in evaluating the voluntariness of his waiver. It would be implausible to maintain that the temporary respite completely nullified the impact of the prior badgering, which was calculated to continue to work on Dorsey’s mind; at most, the recess allowed the coercion to abate to some indeterminable extent.¹¹¹ By itself, this would not be enough to persuade us that the pressures on Dorsey to relinquish his constitutional rights were sufficiently dispelled — especially as our judicial duty is to “indulge every reasonable presumption” against his waiver of those rights.¹¹²

In addition, however, Judge Gardner made the finding that, after having had the opportunity to rest and reflect, Dorsey was overcome by genuine feelings of remorse and that it was Dorsey’s own contrition rather than the detectives’ coercive inducements that motivated him to waive his rights and confess. The judge’s determination of Dorsey’s motivation is a finding of historical fact.¹¹³ This finding is supported by substantial evidence in the record, notably Dorsey’s repeated statements of repentance on the videotape of his confession, which he never disavowed or explained away in his testimony at the suppression hearing. Furthermore, Dorsey had withstood the detectives’ prolonged badgering throughout the overnight interrogation,¹¹⁴ and when he confessed, he did so calmly, agreeing that he had not been forced to do anything against his will.¹¹⁵ We well appreciate that there is substantial evidence to the contrary and that a reasonable observer could doubt the sincerity of Dorsey’s statements of remorse and dismiss them as just “the predictable harvest” of Ross and Thompson’s interrogation strategy.¹¹⁶ But as a reviewing court, we “may not usurp the prerogative of the [trial] judge, as the trier of fact, to determine credibility and weigh the evidence.”¹¹⁷ The “clearly erroneous” standard of review is highly constraining; it “plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is .... convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” ¹¹⁸ Indeed, we owe especial deference to Judge Gardner’s determination that Dorsey was penitent when he chose to confess because the judge had the singular opportunity to take Dorsey’s measure not only on the videotape, but also in person when he took the witness stand.¹¹⁹ A judge may not, of course, “insulate his findings from review by denominating them credibility determinations, for factors other than demeanor and inflection go into the decision whether or not to believe a witness.”¹²⁰ But where, as here, “there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”¹²¹ We may be skeptical, but we perforce must defer to Judge Gardner’s factual determination.

That Dorsey was motivated by pangs of conscience weighs heavily against the contention that his will was overborne by the detectives’ coercive tactics.¹²² Even though Ross and Thompson may have aroused those pangs by their improper badgering (thereby invalidating Dorsey’s “initiation” of further interrogation), their origin did not preclude Dorsey’s eventual waiver and confession from being, ultimately, “the product of a free and deliberate choice rather than intimidation, coercion, or deception.”¹²³ Considering the totality of the circumstances and the key findings of fact by the motions judge, we hold that the government met its burden of showing the voluntariness of Dorsey’s waiver and confession. Accordingly, while the government will be precluded in a new trial from introducing Dorsey’s confession against him in its case-in-chief, the confession will be admissible for purposes of impeaching Dorsey if he takes the stand.

III. Conclusion

We have concluded that Dorsey’s confession was obtained in violation of Edwards and Miranda. Because the trial court therefore erred in admitting the confession in the government’s case-in-chief, we reverse Dorsey’s convictions and remand this case with the direction that he be retried.

So ordered,¹²⁴

Dissenting opinion by Associate Judge THOMPSON.

Dissenting opinion by Senior Judge REID.

1 .Dorsey was found guilty of aggravated assault while armed (shod foot), in violation of D.C.Code §§ 22-404.01, -4502 (2001), and armed robbery of a senior citizen, in violation of D.C.Code §§ 22-2801, -4502, -3601 (2001).

2 . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3 . 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

4 . Dorsey v. United States, 2 A.3d 222 (D.C.2010) (vacated).

5 . Dorsey was not the only suspect, however.

6 . During his subsequent interrogation, Dorsey explained that he had been told about the broadcast but had not seen it himself and did not know why the police wanted to speak to him.

7 .In accordance with the requirements of D.C.Code § 5-116.01 (2008 Repl.), which took effect only days before Dorsey was arrested, his interrogations were videotaped in their entirety.

8 . Dorsey, who was 46 years old, had been arrested over thirty times before and had ten prior convictions. He had graduated from the twelfth grade and could read and write.

9 . Judge Gardner subsequently ruled that the detectives violated Dorsey's Fifth Amendment rights by continuing to question him about his girlfriend after he unambiguously asserted his right to cut off questioning on that subject. The judge suppressed all statements that Dorsey made about his girlfriend in response to such questioning. Dorsey’s selective unwillingness to be questioned about his girlfriend did not constitute an assertion of his right to terminate all questioning. See Burno v. United States, 953 A.2d 1095, 1101-02 (D.C.2008).

10 . Dorsey denied that he was the man shown in the photo and said that it looked like someone he knew named "Bolly.”

11 . This vague allusion to an assault in Foggy Bottom was the first time in the interrogation that Ross referred to the robbery of Fotopou-lous.

12 . At trial, the government presented evidence that Dorsey was a potential minor contributor to DNA found on a white sock recovered from the scene of the robbery. The chance of a random match among African Americans for that DNA was said to be one in 3,300.

13 . “If you're saying you want a lawyer,” Ross told Dorsey, "I'll stop right now, I’ll walk out the door. But we want to get to rite bottom of this. You’re saying if — to take a DNA test, you want a lawyer, is that what you're saying?” In response, Dorsey agreed that he did not "need a lawyer” to talk to Ross. On appeal, Dorsey does not contend that he made an unequivocal invocation of his Fifth Amendment right to counsel at this point in the interrogation (as he did later in the interrogation). Nor does he argue that the statement we have italicized constituted a subtle, improper effort to chisel away at his possible resolve to invoke that right — though so it may appear. Cf. Davis v. United States, 512 U.S. 452, 475, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (Souter, J., concurring) (noting that "clarifying” questions by police may "shade subtly into illicitly badgering a suspect who wants counsel”).

14 . Ross asked Dorsey if he had lost a pair of socks (which Dorsey denied) because "[t]he way you perspire, [DNA] could be very well in them socks.” Ross also claimed the police had found "fingerprints on certain things that were touched,” which was not true.

15 . It appears this statement was untrue.

16 . At one point, an officer entered to take photographs of Dorsey’s hands. Later an officer brought him some water.

17 . Given the distress and anxiety that Dorsey displayed (e.g., by soiling himself, "shaking like a leaf,” and mumbling and cursing to himself), we are unable to share Judge Thompson’s perceptions that Dorsey was at “ease ... in the interrogation room” and that the only "aspect of the custodial interrogation that caused [him] discomfort” was "his inability to lie down to sleep.” Post at 88, 90.

18 . Dorsey asserted in response that he had had only “one drink” on the day of the robbery and "kn[e]w pretty much what went on that day.”

19 . The government conceded at the suppression hearing that Dorsey invoked his Fifth Amendment right to counsel at this point.

20 . It is unclear from the record whether there really was a driver in a white car who was allowed to view Dorsey while he was in the interrogation room early Sunday morning.

21 . Dorsey agreed with the prosecutor’s characterization. He also agreed that he was not “intimidated” by being in the holding cell and knew he would be going to court the following day.

22 . Crespo and Young testified at the suppression hearing that they had not been told Dorsey had asserted his Fifth Amendment rights during his earlier interrogation.

23 . In his testimony at the suppression hearing, Dorsey denied having asked to speak to Ross or Crespo. He testified that, after he had been in his cell for about five hours, an officer asked him if he wanted anything to eat and escorted him back to the interrogation room. This officer then tried to ask him some questions about his refusal to "give in,” but Dorsey told him he did not want to talk about it and thought the police had finished interviewing him. Dorsey claimed that Crespo and Young then entered the room and told him that if he would "take the robbery charge,” they would talk to the prosecutor about his being released from jail when he went to court the next day, and he would be "treated more leniently.” Dorsey claimed this inducement was the reason he made the "choice” to confess. Judge Gardner, noting how Dorsey was contradicted by the videotape and by the detectives’ testimony at the suppression hearing, stated that he did not believe "one word” of Dorsey’s account.

24 . The detectives asked Dorsey if he had put something like a sock on his hand when he attacked Fotopoulous. He denied it, though Young told him to "think about it before [he] answer[ed]” and asked him if he was "sure.”

25 . Dorsey, who was 46 years old himself, claimed that he had "thought she was probably in about her fifties.” But when Crespo asked him what she had looked like, he described her as "just a old white lady” with "white hair.” Dorsey never explained how he could have failed to realize that Fotopou-lous was elderly.

26 . At the suppression hearing, Dorsey assented on cross-examination to the prosecutor’s assertion that his statement to the detectives "meant that [he had] been in the system long enough that [he] didn't believe what the police had been telling [him] the night before.” Dorsey nonetheless refused to agree that he "didn't change [his] mind because of anything the police officers said to [him].” Judge Gardner, noting Dorsey’s long hesitation before he gave that answer, discredited it.

27 . Although the government disputed this conclusion at the suppression hearing, on appeal it does not contest the judge's determination that as of 11:10 p.m., Dorsey unambiguously asserted his right to terminate the interrogation and remain silent. See Berghuis v. Thompkins, 560 U.S. -, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (holding that "an accused who wants to invoke his or her right to remain silent [must] do so unambiguously”).

We agree with Judge Gardner’s determination. A suspect need not refer explicitly to his constitutional rights or use any particular form of words in order to convey his unwillingness to be questioned further; “any declaration of a desire to terminate the contact or inquiry (e.g., "Don't bother me”) should suffice.” 2 Wayne R. LaFave et al., Criminal Procedure § 6.9(g) (3d ed.2007) (footnote omitted). In asking to be taken back to the cellblock “now,” after having made several similar requests in the preceding hour, Dorsey was not seeking merely to postpone his interrogation so he could sleep (as Judge Thompson suggests, see post at 1207 n. 2). Nor was Dorsey proposing that his holding cell would be a more congenial spot for further interrogation. Any reasonable police officer would have understood that Dorsey meant "he did not want to talk with the police” any more. Berghuis, 130 S.Ct. at 2260. Dorsey therefore did all he needed to do to invoke his right to end the interrogation and remain silent. Id.

28 . The judge also suppressed any earlier statements about Diane Bush made by Dorsey after he said he did not want to talk about her. See supra note 9.

29 . See supra note 23.

30 . See Jones v. United States, 779 A.2d 277, 281 (D.C.2001) (en banc).

31 . Id.

32 . See, e.g., United States v. Whaley, 13 F.3d 963, 968 (6th Cir.1994).

33 . See, e.g., Graham v. United States, 950 A.2d 717, 735 (D.C.2008) (voluntariness of confession); Robinson v. United States, 928 A.2d 717, 725 (D.C.2007) (voluntariness of waiver); United States v. Sriyuth, 98 F.3d 739, 748 (3d Cir.1996) (knowing and intelligent waiver).

³⁴

35 . Id. at 467, 86 S.Ct. 1602. "The Court observed that ‘incommunicado interrogation' in an ‘unfamiliar,’ 'police-dominated atmosphere,’ involves psychological pressures 'which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely[.]’ ” Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1219, 175 L.Ed.2d 1045 (2010) (quoting Miranda, 384 U.S. at 456-57, 467, 86 S.Ct. 1602).

36 . Shatzer, 130 S.Ct. at 1219 (quoting Miranda, 384 U.S. at 458, 86 S.Ct. 1602).

³⁷

38 . Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602.

39 . Id. at 474, 86 S.Ct. 1602.

40 . Berghuis v. Thompkins, 560 U.S. -, 130 S.Ct. 2250, 2260, 176 L.Ed.2d 1098 (2010) (quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)).

41 . Berghuis, 130 S.Ct. at 2260 (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)); see also Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ("[W]aivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege[.]”). The validity of a waiver thus "depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)).

42 . Moran, 475 U.S. at 421, 106 S.Ct. 1135 (internal quotation marks omitted).

43 . Miranda, 384 U.S. at 476, 86 S.Ct. 1602.

44 . Berghuis, 130 S.Ct. at 2262.

45 . Id. at 2264.

46 . Miranda, 384 U.S. at 475, 86 S.Ct. 1602 (quoting Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962)).

47 . Id. at 474.

48 . 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

49 . Id. at 104, 96 S.Ct. 321.

50 . Id. (quoting Miranda, 384 U.S. at 474, 479, 86 S.Ct. 1602).

⁵¹

52 . Id. at 484, 101 S.Ct. 1880.

53 . McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).

54 . Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880.

55 . McNeil, 501 U.S. at 177, 111 S.Ct. 2204. The “request for counsel ... raise[s] the presumption that [the suspect] is unable to proceed without a lawyer's advice." Arizona v. Roberson, 486 U.S. 675, 683, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988); see also Michigan v. Harvey, 494 U.S. 344, 353, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990) (explaining that Edwards adopted a prophylactic rule "that render^] some otherwise valid waivers of constitutional rights invalid when they result from police-initiated interrogation”); Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) ("Edwards conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms.”).

56 . Not all inquiries or statements by a suspect amount to "initiation” for purposes of Edwards. For example, inquiries "relating to routine incidents of the custodial relationship[ ] will not generally 'initiate' a conversation in the sense in which that word was used in Edwards.” Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (plurality opinion). Typically, to effect an Edwards "initiation,” the suspect must "evince a willingness and a desire for a generalized discussion about the investigation.” Id. at 1045-46, 103 S.Ct. 2830; accord id. at 1055, 103 S.Ct. 2830 (Marshall, J., dissenting).

57 . Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. 1880; see also id. at 482, 101 S.Ct. 1880 (reciting the familiar requirement that waiver of counsel must be knowing, intelligent, and voluntary).

58 . Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

59 . Roberson, 486 U.S. at 686, 108 S.Ct. 2093.

60 . Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1220, 175 L.Ed.2d 1045 (2010) (internal quotation marks and citation omitted).

61 . Id. (internal quotation marks and citation omitted); see also Smith, 469 U.S. at 98, 105 S.Ct. 490 ("In the absence of such a bright-line prohibition, the authorities through 'badgering' or 'overreaching' — explicit or subtle, deliberate or unintentional — might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance.'').

62 . Shatzer, 130 S.Ct. at 1220 (internal quotation marks, brackets, and citation omitted).

63 . Id. at 1221.

64 . Michigan v. Mosley, 423 U.S. 96, 105-06, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

65 . United States v. Gomez, 927 F.2d 1530, 1538-1539 (11th Cir.1991) (citation omitted); see also Commonwealth v. Ferguson, 278 Va. 118, 677 S.E.2d 45, 49 (2009) ("The silence was broken when the coercive environment, the threats, the cajoling, the promises of assistance in return for cooperation, and the failure to honor Ferguson's request for counsel had its intended effect.... Whatever the significance of Ferguson’s comments that broke the silence, they were the product of the coercive interrogation and environment created by police. Surely, police may not use the product of such techniques as proof of a voluntary reinitiation of communication and subsequent waiver of the right to counsel.”).

66 . See Collazo v. Estelle, 940 F.2d 411, 423 (9th Cir.1991) ("Although the words and even the actions that could normally be construed as ‘initiation’ were present at the outset of the second encounter, an analysis of the substance of the entire transaction — rather than the isolated form of the second encounter— demonstrates that Collazo did not 'initiate' further conversation as that term is used in Edwards. ... [Rather,] Collazo's words and actions in calling back the officers and in ‘waiving’ his rights were nothing less than the delayed product of [the police officer's Miranda violation] three hours previously.” (emphasis in original)).

67 . Brief for Appellee at 29.

68 . When a suspect asks for counsel, the police know they will not be able to continue trying to elicit his confession while he is still in their custody unless the suspect "initiates” another round of interrogation. The suspect is unlikely to do that on his own. See Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1990) (noting that Edwards "is based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily in subsequent interrogations”). For that reason, there is little downside to badgering the suspect to change his mind, but there is a big potential upside. Badgering the suspect might persuade him to "initiate” further dialogue with the police, waive his Miranda rights, and confess; and if the validity of his waiver is the only real legal hurdle to overcome, the totality-of-the-circumstances analysis may permit admission of the confession. This scenario, of course, is exactly what Edwards was intended to prevent.

69 . Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

70 . See Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1222-23, 175 L.Ed.2d 1045 (2010) (adopting bright-line rule in lieu of case-by-case adjudication in holding that two weeks must pass following a suspect’s release from custody before the Edwards presumption of involuntariness expires and police may seek to interrogate the suspect after he asked for counsel).

71 . In his concurring opinion in Collazo, Judge Kozinski proposed such a per se rule:

In my view, however, the police forfeit the benefit of the Edwards exception once they use the type of pressure tactics demonstrated in this record. Because Edwards is designed to prevent police from badgering suspects into giving up their right to counsel, the narrow exception to Edwards cannot apply in a case where the police actually engaged in badgering. If police want to keep the Edwards escape hatch open, they must cease their interrogation as soon as the suspect asserts his right to counsel, and then hope he changes his mind on his own. Any other rule would invite police misconduct and enmesh the courts in the type of metaphysical unscrambling of which this case is a perfect example.

940 F.2d at 427.

72 . See State v. Yoh, 180 Vt. 317, 910 A.2d 853, 863 (2006) (“The only question we must answer is whether the tactics employed in the second interview [in which police violated Miranda and Edwards ] contributed to appellant's decisions to initiate the third interview, waive his Miranda rights ..., and make a confession.”).

73 . Post at 1213 (quoting Riley v. United States, 923 A.2d 868, 884 n. 17 (D.C.2007)).

74 . See Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) ("Whenever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence.”); see also United States v. Matlock, 415 U.S. 164, 178 n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ("[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence.”).

75 . See, e.g., Hill v. Brigano, 199 F.3d 833, 842 (6th Cir.1999) (“Taking into account both the time lapse between the impermissible interrogation and the incriminating statements by the defendant and the fact that the defendant was aware that he had been assigned counsel, we believe the trial court was correct in analyzing the admissibility of this evidence under the initiation exception to Edwards.”); Collazo, 940 F.2d at 421 (listing “factors that are relevant to determining the effect of previous police coercion,” including “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 (4) the conditions that would have precluded the use of a first statement had been removed”).

76 . Cf. Missouri v. Seibert, 542 U.S. 600, 622, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (Kennedy, J., concurring in the judgment) (stating that where police use an improper "question-first” interrogation technique to undermine effectiveness of subsequent Miranda warnings, "postwaming statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwaming statement is made” (emphasis added)).

77 . Cf. Riley v. United States, 923 A.2d 868, 885 (D.C.2007) (holding that the "key factor in prompting” the defendant to confess was a meeting he requested with a co-defendant and that defendant's waiver of his Miranda rights was “not tainted" by a detective's earlier, "serious, but ultimately inconsequential, misstep” in not scrupulously honoring the defendant's right to remain silent).

78 . Acknowledging that we do not, in fact, adopt a per se rule, Judge Reid somewhat inconsistently complains that the necessary inquiry into whether a suspect’s “initiation" was the fruit of an Edwards violation "has obvious potential for confusing, conflicting, and fact-intensive panel opinions based upon the subjective views of appellate judges.” Post at 1224. This concern is vastly overblown. A factual inquiry is always required to determine whether the initiation and waiver requirements of Edwards and Miranda are satisfied, regardless of whether the police are alleged to have violated Edwards by continuing to question a suspect after he has invoked his right to counsel. Similarly, trial and appellate courts routinely engage in fact-intensive inquiries in all manner of cases to determine whether evidence is the fruit of a constitutional violation. There is nothing unique or especially difficult about an inquiry into whether a suspect’s decision to resume talking to the police was the product of improper, post-invocation badgering. We can expect, however, that because police usually comply with their obligations under Edwards, the question will arise infrequently.

79 . That was shortly before Dorsey asked for counsel, but well after he had tried to terminate the interrogation by invoking his right to silence.

80 . Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 1220, 175 L.Ed.2d 1045 (2010) (internal quotation marks, citation, and brackets omitted). Under Shatzer, if the detectives had refrained from impermissible badgering and released Dorsey instead of holding him, they still would have been obliged to wait fourteen days for him to "shake off any residual coercive effects of his prior custody” before they could undertake to question him again. Id. at 1223. If the coercive effects of custodial interrogation are so profound that it takes two weeks in the community for them to dissipate even in the absence of police badgering, a few hours alone in a holding cell cannot be considered enough time for a suspect to "shake off” egregious badgering of the sort exhibited here.

81 . Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (emphasis added); see also Shatzer, 130 S.Ct. at 1220 ("The Edwards presumption of involuntariness [was designed to] ensure[] that police will not take advantage of the mounting coercive pressures of ‘prolonged police custody’ by repeatedly attempting to question a suspect who previously requested counsel until the suspect is ‘badgered into submission[.]‘ ” (emphasis added) (citations omitted)).

82 . It is true, as Judge Thompson argues, that the themes of the post-invocation badgering Dorsey echoed in his confession had their , roots in the detectives' pre-invocation interrogation. See post at 1213-14. We cannot conclude, however, that the intensified repetition and amplification of those motifs after Dorsey asked for a lawyer were innocuous. Indeed, it seems most plausible that the repetition was the key to getting Dorsey to capitulate and confess. That, after all, was why the detectives continued to badger Dorsey after he asked for an attorney — because they thought their techniques would wear him down.

83 . See Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. 1880; see also id. at 482, 101 S.Ct. 1880.

84 . Alston v. Redman, 34 F.3d 1237, 1243 (3d Cir.1994); accord United States v. Covington, 783 F.2d 1052, 1055 (9th Cir.1985); United States v. Scalf, 708 F.2d 1540, 1544 (10th Cir.1983). "[Cjustodial interrogation must be conducted pursuant to established procedures, and those procedures in turn must enable an officer who proposes to initiate an interrogation to determine whether the suspect has previously requested counsel.” Arizona v. Roberson, 486 U.S. 675, 687, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).

85 . See North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) (rejecting "inflexible per se rule” that "an explicit statement of waiver is ... invariably necessary to support a finding that the defendant waived” his Miranda rights).

86 . Berghuis v. Thompkins, 560 U.S. -, 130 S.Ct. 2250, 2262, 176 L.Ed.2d 1098 (2010).

⁸⁷

88 . Mosley, 423 U.S. at 104-05, 96 S.Ct. 321.

89 . Roberson, 486 U.S. at 683, 108 S.Ct. 2093.

90 . See supra note 27.

91 . See Miranda, 384 U.S. at 476, 86 S.Ct. 1602 ("[A]ny evidence that the [suspect] was threatened, tricked, or cajoled into a waiver will, of course, show that [he] did not voluntarily waive his privilege.”).

92 . See Mosley, 423 U.S. at 104, 96 S.Ct. 321 (”[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.' ” (quoting Miranda, 384 U.S. at 474, 86 S.Ct. 1602)).

93 . See Berghuis, 130 S.Ct. at 2261.

94 . See Edwards, 451 U.S. at 482-83, 101 S.Ct. 1880 (holding that lower court erred in considering only voluntariness of defendant's admission, without "separately focusing on whether [he] had knowingly and intelligently relinquished his right to counsel”).

95 . Brief for Appellee at 31-32.

96 . Id. at 33.

97 . Miranda, 384 U.S. at 467, 86 S.Ct. 1602 (emphasis added). "[T]he effectiveness Miranda assumes the warnings can have must potentially extend through the repeated interrogation, since a suspect has a right to stop at any time.” Missouri v. Seibert, 542 U.S. 600, 614 n. 5, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (plurality opinion); see also id. at 621, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment) ("The Miranda rule would be frustrated were we to allow police to undermine its meaning and effect.” (emphasis added)).

98 . Dickerson v. United States, 530 U.S. 428, 442, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (emphasis added).

99 . Brief for Appellee at 33.

100 . Dickerson, 530 U.S. at 442, 120 S.Ct. 2326.

101 . Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213,1229, 175 L.Ed.2d 1045 (2010) (Stevens, J., concurring in the judgment) (quoting Davis v. United States, 512 U.S. 452, 472-73, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (Souter, J., concurring in the judgment)). See also Arizona v. Roberson, 486 U.S. 675, 686 n. 6, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), where the Court addressed the point as follows:

The United States ... suggests ... that 'respondent’s failure to reiterate his request for counsel ... even after [the officer] gave respondent complete Miranda warnings, could not have been the result of any doubt on respondent’s part that the police would honor a request for counsel if one were made.' ... This conclusion is surprising, considering that respondent had not been provided with the attorney he had already requested, despite having been subjected to police-initiated interrogation with respect to the first investigation as well.

See also Seibert, 542 U.S. at 617, 124 S.Ct. 2601 (plurality opinion), 622 (Kennedy, J., concurring in the judgment) (condemning questioning technique that rendered Miranda warnings ineffective "to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk”).

102 . Shatzer, 130 S.Ct. at 1232 n. 11.

103 . People v. Neal, 31 Cal.4th 63, 1 Cal.Rptr.3d 650, 72 P.3d 280, 296 (2003) (Kennard, J., concurring).

104 . Cf. Seibert, 542 U.S. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment) (“Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.”).

105 . United States v. Turner, 761 A.2d 845, 853 (D.C.2000) (citations omitted). On the facts of this case, the inquiry with respect to the voluntariness of Dorsey's waiver is the same as it is with respect to the voluntariness of his confession. Graham v. United States, 950 A.2d 717, 735-36 & n. 68 (D.C.2008); see also Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). Thus, our discussion here applies equally to both issues.

106 . Turner, 761 A.2d at 854 (quoting Arizona v. Fulminante, 499 U.S. 279, 288, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)).

107 . Our conclusion that Dorsey’s request to speak again with the detectives must be viewed as a delayed response to their badgering does not necessarily mean it was involuntary. There is a difference between evoking a response from a suspect and compelling it.

108 . We note that the several techniques employed by the detectives have drawn cogent criticism for their psychological coerciveness and their tendency to elicit false confessions from innocent suspects. See generally Nadia Soree, When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role of Expert Testimony, 32 Am. J.Crim. L. 191, 196-201 (2005); Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L.Rev. 891, 908-20 (2004); Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U.L.Rev. 979 (1997).

109 . United States v. Harrison, 34 F.3d 886, 891-92 (9th Cir.1994) (emphasis in original).

110 . Suggesting mitigating "facts” for the suspect to adopt as part of an admission of guilt has been termed "the accident scenario technique or the maximization/minimization strategy to deliver threats and promises.” Ofshe & Leo, supra note 108, at 1088. The ploy is offensive at the most basic level because it appears to offer a benefit — leniency-—in exchange for a false confession (a benefit, moreover, that the police have no power to grant). See id. at 1089. Ironically, "[b]ecause guilty suspects can often see through the tactic [and recognize it is a trap], it may generally be more effective when directed at the innocent." Id,

111 . Cf. Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir.1992) (reasoning that passage of some six hours between defendant's physical beating by police and his subsequent confession to other interrogators in another location constituted a "meaningful interlude” in which the threat of coercion "faded considerably,” so that even though the "contamination” had not "completely disappeared,” it was not enough given the "break in the stream of events” to render the confession involuntary).

112 . See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (“[C]ourts indulge every reasonable presumption against waiver of fundamental constitutional rights.” (internal quotation marks omitted)).

113 . See Morris v. United States, 728 A.2d 1210, 1219-21 (D.C.1999) (holding it a factual determination committed to the trial judge that defendant was motivated to waive his right to counsel and confess by feelings of remorse).

114 . See Beasley v. United States, 512 A.2d 1007, 1016 (D.C.1986) ("[Appellant's own behavior during the interrogation indicates that the officers’ statements were not sufficient to coerce a ... confession.”).

115 . See Plater v. United States, 745 A.2d 953, 962 (D.C.2000) (affirming determination that waiver and confession were voluntary where, inter alia, the trial judge found that the defendant “expressed that he was not threatened and that he was not forced to give his statement” and that the defendant's "disposition appeared comfortable on the videotape”).

116 . Collazo v. Estelle, 940 F.2d 411, 423 (9th Cir.1991) (en banc).

117 . In re S.G., 581 A.2d 771, 775 (D.C.1990).

118 . Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

119 . See id. at 575, 105 S.Ct. 1504 ("[Ojnly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.”); In re S.G., 581 A.2d at 774 ("The trial judge presided over the factfinding hearing and was able to observe and assess the demeanor of the witnesses. This court, on the other hand, is limited to a paper record which may capture the words of a case but not its heart and soul.”).

120 . Anderson, 470 U.S. at 575, 105 S.Ct. 1504. For example, "[djocuments or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination.” Id.

121 . Id. at 574, 105 S.Ct. 1504.

122 . See, e.g., Dickerson v. United States, 530 U.S. 428, 433, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (" 'A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt ... but a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape ... that no credit ought to be given to it; and therefore it is rejected.’ ") (quoting King v. Warickshall, (1783) 168 Eng. Rep. 234 (K.B.) 235; 1 Leach 262, 263-264.).

123 . Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

124 . Dorsey's appeal raised a second issue, whether the trial court abused its discretion by not permitting him to present expert testimony at trial on techniques used by police to elicit confessions and the phenomenon and psychology of false confessions. Our conclusion that Dorsey is entitled to a new trial at which the government will be precluded from introducing his confession in its case-in-chief renders it unnecessary for us to decide whether the trial court erred in excluding the proffered expert testimony. If the issue should arise at a new trial, we presume the trial court will consider the admissibility of the expert testimony in accordance with the criteria set forth in Dyas v. United States, 376 A.2d 827, 832 (D.C.1977).