dissenting:
Under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), a suspect in custody only has to ask for a lawyer once. Thereafter, the suspect cannot be questioned without counsel present unless he himself initiates the contact with authorities. Here, Ronnie Howard invoked his Fifth Amendment right to counsel one day before his federal probation officer came to see him. Howard’s unwarned confession to the probation officer prompted that officer to arrange a meeting between Howard and the FBI, which, in turn, led to a meeting with a deputy sheriff. Howard made separate Miranda-warned confessions to the FBI and the deputy, and those two confessions were admitted at trial. The majority holds that it is immaterial whether Howard initiated the meeting with his probation officer because his confession to that officer was not actually coerced .in a constitutional sense. Thus, according to the majority, the resulting Miranda-warned confessions to the FBI and the deputy were not tainted and were admissible. This holding is in direct conflict with Edwards. Under Edwards, once a suspect asks for a lawyer, there can be no police interrogation unless the suspect initiates it. The majority has circumvented this rule, and Edwards is now all but gone in the five states of the Fourth Circuit.
In addition, the majority ignores well-established Eighth Amendment precedent that governs the admission of mitigating evidence at sentencing. The state trial judge allowed only part of Howard’s later confessions to be introduced. The redacted confessions were admitted for their truth, both at trial and at sentencing. Because of the redactions, the jury never heard the climax of Howard’s chilling story, when he described how Weldon reapplied pressure to make sure the victim died. The judge correctly excluded the redacted portions in the guilt phase of the trial pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), because they shifted blame to Weldon. In the penalty phase, however, the full story should have . come in: the Eighth Amendment gives Howard the right to have the sentencing jury hear any mitigating evidence about his personal history or the circumstances of the offense. The trial judge and the majority should have recognized that any information that shifts ultimate blame to another is, by definition, mitigating evidence about the circumstances of the crime. Because the majority errs twice with respect to the confessions, circumventing Edwards and ignoring the Eighth Amendment, I must respectfully dissent.
I.
On September 12, 1985, Howard was arrested and jailed in North Carolina for a robbery unrelated to the Chinh Le murder. Immediately thereafter, South Carolina authorities sought to question Howard, but his lawyer told them on September 18 and 24 that Howard could not be interrogated unless he (the lawyer) was present. Howard and his lawyer did meet with the South Carolina authorities on October 2, but after an unsuccessful attempt to obtain immunity, Howard invoked his right to counsel and refused to talk. The very next day Howard’s federal probation officer, Heywood Polk, came to the Buncombe County Jail to see Howard. The majority claims • it is immaterial whether Howard or Polk initiated this meeting. In any event, Howard’s lawyer was not notified about the meeting, and Polk did not give Howard the Miranda warnings. Howard proceeded to confess to Polk “about everything,” including the Le murder and several other crimes.1 Polk’s advice to Howard was *424directly contrary to that given by his lawyer: Polk convinced Howard to talk to the FBI in an attempt to get a deal.2 On October 8, five days after his meeting with Polk, Howard confessed to FBI agent Battle after signing a Miranda waiver. A week later, on October 16, Howard again waived his Miranda rights and confessed to Lieutenant Hitchins, a South Carolina sheriffs deputy. Howard’s lawyer was not notified about any of these meetings, even though Howard had invoked his right to counsel only a few days earlier, on October 2. At Howard’s murder trial the state introduced redacted versions of Howard’s confessions to the FBI and the deputy.
The ultimate question is whether Edwards makes Howard’s confessions to the FBI and the deputy sheriff inadmissible.3 Edwards established a bright line rule: once a suspect in custody invokes his right to counsel, he cannot be questioned again without counsel present “unless the [suspect] himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981).
The rule of Edwards supplements Miranda with added protection for exercising the Fifth Amendment privilege against self-incrimination. Before a jailed suspect has asked for a lawyer, he receives only the basic Miranda protection, the irrebuttable presumption that any unwarned statement to the police is involuntary (for Miranda purposes) and therefore inadmissible. Once the suspect invokes the right to counsel, however, he receives the added Edwards protection:
if a suspect believes that he is not capable of undergoing [custodial] questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the “inherently compelling pressures” and not the purely voluntary choice of the suspect.
Arizona v. Roberson, 486 U.S. 675, 681, 108 S.Ct. 2093, 2097-98, 100 L.Ed.2d 704 (1988). Again, once a suspect asserts the right to counsel, police-initiated reinterrogation without counsel is prohibited. Any confession resulting- from police-initiated reinterrogation is barred by Edwards even if the suspect waived his Miranda rights and even if the confession was voluntary under traditional *425due process analysis. See id. at 686, 108 S.Ct. at 2100; see also Minnick v. Mississippi 498 U.S. 146, 151, 111 S.Ct. 486, 489-90, 112 L.Ed.2d 489 (1990).
In this case, we know little about what Howard was thinking as he sat in the Buncombe County Jail. But we do know one thing: he invoked his right to counsel on October 2, 1985, and he flatly refused to talk to the police. Thus, unless Howard himself initiated further discussions with the authorities, the confessions he made in response to questioning by his probation officer, the FBI, and the deputy are all inadmissible. That is the clear command of Edwards.
The first question is whether Howard initiated the discussion with his probation officer. The majority disembowels Edwards by dismissing this question as immaterial. As Justice Kennedy, writing for the Court, has explained, “[t]he merit of the Edwards decision lies in the clarity of its command and the certainty of its application.” Minnick, 498 U.S. at 151, 111 S.Ct. at 490. The majority ignores this guidance from the Supreme Court and constructs a complex detour around the clear mandate of Edwards. First, it says that Edwards is not a constitutional rule. Second, it assumes that Howard’s statement to Polk, including his agreement to speak to the FBI, was obtained in violation of Edwards. Thus, it does not matter if the probation officer initiated the meeting. Third, the majority says that notwithstanding any Edwards violation, Howard’s subsequent confessions to the FBI and the deputy are admissible unless the “fruit of the poisonous tree” doctrine applies. In other words, if Howard’s October 3rd confession to Polk was voluntary (not coerced) under traditional Fifth Amendment standards, there is no “poisonous tree” and the subsequent (resulting) confessions are not “tainted fruits.” Using this analysis, the majority quickly finds that “Howard’s statements to Polk were not ‘involuntary’ within the meaning of the Fifth Amendment,”4 ante at 414-15, and concludes that the later confessions were not “tainted fruits.”
The. majority’s approach misses the whole point of Edivards. The Edwards rule operates even absent a constitutional violation. See Roberson, 486 U.S. at 681-82, 108 S.Ct. at 2097-98. Thus, the majority’s focus on just the voluntariness of Howard’s statement to Polk is wholly misplaced. Edwards emphasizes that whether a confession is voluntary and whether a suspect has validly waived his already invoked right to counsel “are discrete inquiries.” Edwards, 451 U.S. at 484, 101 S.Ct. at 1884. In Edwards, Robert Edwards asked for a lawyer the night of his arrest. The next morning two detectives came to the jail to see Edwards and advised him of his Miranda rights. They got a confession, and the state courts held it to be voluntary and admissible. The Supreme Court reversed on the admissibility point:
We now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that, right cannot be established by showing only that he responded to further police-initiated interrogation even if he has been advised of his rights.
Id. (emphasis added). Thus, even though Edwards’ confession was voluntary, it was inadmissible because he had 'not initiated the contact with the police. With respect to Howard, it makes no difference that the majority finds Howard’s confession to Polk to be voluntary under traditional Fifth Amendment standards. Voluntariness is still the wrong inquiry. The only relevant question is whether Howard himself initiated communication with Polk, thereby waiving his previously invoked right to counsel.5
The whole problem with the majority’s approach is that it never' focuses on whether any of Howard’s confessions — the first to Polk and the second and third to Battle and Hitchins — were made after a valid waiver of *426his once-asserted right to counsel. Instead, the majority holds that Edwards protection is broken with one “voluntary” (uncoerced) statement, made without Miranda warnings. The practical consequence of this holding is quite significant. Even though a jailed suspect has invoked his right to counsel, the police can now send in an interrogator who gets a confession (without counsel present) that is not coerced under traditional Fifth Amendment analysis. This allows the police to send in (still without counsel present) additional interrogators who get Miranda waivers and new, “untainted” confessions. The later confessions are admissible because the first was not coerced, even though all were obtained in blatant violation of Edwards.
I am convinced that the Supreme Court did not intend for the bright line rule of Edwards to be circumvented in this way. Indeed, the Supreme Court has indicated that fresh sets of Miranda warnings in subsequent police-initiated interrogation do not overcome the presumption that the suspect who has invoked his right to counsel believes he cannot cope with interrogation without his lawyer' at his side. See Roberson, 486 U.S. at 686, 108 S.Ct. at 2100 (“[W]e ... disagree with [the state’s] contention that fresh sets of Miranda warnings will ‘reassure’ a suspect who has been denied the counsel he has clearly requested that his rights remain untrammeled.”). There is only one conclusion: Miranda-warned confessions, such as those Howard gave to the FBI and the deputy sheriff, are inadmissible if they are set up by an earlier Edwards violation.
The majority’s rationale for undermining Edwards appears to be based on a misapplication of Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), a case that is quite different from Edwards and Howard’s case. In Elstad, when the police went to the home of the accused (Elstad) to arrest him, he admitted his involvement in the crime before he was given his Miranda rights. After Elstad was taken to the station, the police read him his rights; he then waived his right to counsel and gave a full confession. The Court noted that Elstad’s prior unwarned statement, although inadmissible under Miranda, was not coerced. As a result, the first statement did not “compromise[ ] the voluntariness of [the] subsequent informed waiver,” and the second statement was held admissible. Id. at 312, 105 S.Ct. at 1294. In direct contrast to the situation in Edwards,. however, Elstad did not request counsel before making his first incriminating statement to the police. This distinction is critical. A defendant may give a statement to the police before receiving his Miranda warnings out of lack of awareness of his rights. In that case, “a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible.” Id. at 310-11, 105 S.Ct. at 1294. Any statement made after the Miranda warnings, therefore, is not tainted by the fact of a prior unwarned statement. But where the defendant requests counsel at the outset, the refusal to honor this request creates an atmosphere conducive to coercion, which the mere repetition of Miranda warnings cannot overcome. See Roberson, 486 U.S. at 686, 108 S.Ct. at 2100. That is why a request for counsel gives rise to a presumption of coercion that taints all future statements made outside the presence of counsel, unless the accused himself initiates later discussions with police.
Here the state maintains that Howard initiated the meeting with Polk, and there appears to be support for that argument in the record of state proceedings. Howard vehemently disagrees. In light of this, instead of rushing to scuttle Edwards, I would remand this case to the district court for it to determine who initiated the Howard-Polk meeting of October 3. If Howard initiated it, there is no Edwards violation.
In sum, the majority’s premature move to obliterate the bright line rule of Edwards is contrary to clear precedent. The Supreme Court has repeatedly affirmed the principle set out in Edwards that once a defendant invokes his right to counsel, any later confession resulting from police-initiated interrogation must be suppressed. See, e.g., Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam) (reversing conviction because police continued to interrogate defendant after he invoked his right to counsel, even though his resulting confes*427sion was voluntary and not the product of coercion); Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (reversing conviction where police initiated interrogation and obtainéd incriminating statements after defendant had invoked his right to counsel, even though questioning related to separate investigation); Minnick v. Mississippi 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990) (reversing conviction where defendant was interrogated without a lawyer after he had invoked his right to counsel, even though his lawyer was “made available” outside interrogation room); Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 2354-55, 129 L.Ed.2d 362 (1994) (“But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reiniti-ates conversation.” (citing Edwards)). This unambiguous and continuing reaffirmance of the rule in Edwards means that unless Howard initiated the meeting with Polk, the resulting confessions Howard made to the FBI and the deputy sheriff were inadmissible. The Supreme Court has left no room for maneuver when it comes to Edwards.
The thrust of the majority’s criticism of my dissent is that I “ignore[ ] ... that Howard initiated the discussions with” the FBI. Ante at 415 n. 17. In making this criticism, however, the majority ignores the full circumstances under which Howard “initiated” further contact with the authorities. According to the majority’s reasoning, it is immaterial if Howard’s “request” to talk with the FBI came in a statement (to Polk) obtained in violation of Edwards so long as the statement was “voluntary” in a constitutional sense. The majority’s approach thus allows police to violate Edwards in one interrogation in order'to get a waiver of Edwards for the next round of questioning. That approach is wrong, and it obliterates the clarity and protection of the bright line rule. The Edwards line of cases requires us to start with the suspect’s request for counsel- — a constitutionally significant act — and work forward from there. After the request for counsel is made; there can be no interrogation unless the suspect initiates it without any prodding from the authorities. If Howard did not initiate the meeting with Polk, his entire statement to Polk, including his “request” to speak to the FBI, was obtained in violation of Edwards. The Edwards rule is meaningless if the police can use a request gotten in violation of Edwards to prove that a confession taken a few days later satisfies Edwards.
II.
Even if the confessions (to the FBI and the sheriffs deputy) were admissible, Howard should have been able to present the unredacted versions at his sentencing. The sentencing jury was given the following, incomplete story of Howard’s confession: Howard held the plastic bag over Ms. Le’s head to make her pass out but not to kill her. He then released the bag, believing that she had simply passed out and that she still had a pulse. Pie later realized as he and Weldon drove around that Ms. Le was dead. Howard admitted that he could not say who actually killed her.
There is a big gap in Howard’s brutal story that the jury never heard. The jury was not told that when Howard released the bag, Weldon grabbed it, held it over Ms. Le’s head, and reapplied pressure. Because of this omission, the sentencing jury was not allowed to hear Howard’s assertion that Weldon likely committed the act that killed Ms. Le. Howard argues that the jury was required to consider whether this mitigated his own moral responsibility for the murder. Howard is correct that moral culpability is always relevant to sentencing: “Our capital eases have consistently recognized that’[f]or purposes of imposing the death penalty ... [the defendant’s] punishment must be tailored to his personal responsibility and moral guilt.’ ” South Carolina v. Gathers, 490 U.S. 805, 810, 109 S.Ct. 2207, 2210, 104 L.Ed.2d 876 (1989) (quoting Enmund v. Florida, 458 U.S. 782, 801, 102 S.Ct. 3368, 3378, 73 L.Ed.2d 1140 (1982) (alteration in original)).6 *428The Eighth Amendment provides a capital defendant the broadest latitude to offer evidence at sentencing to avoid the death penalty. The general rule is that the jury must consider any mitigating evidence, that is, “any aspect of a defendant’s character or record or any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978) (plurality opinion). The only question here, as the majority acknowledges, is whether any reasonable juror could have found the redacted portion of the confession to be mitigating. See ante at 419-20 (holding that “[w]e are firmly convinced that no reasonable juror could have found that the unredacted portions of Howard’s confession were evidence that Weldon, rather than Howard, actually killed Le”).
Howard’s effort to offer his full confession is- a perfect example of what the Supreme Court meant in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), when it said that a capital defendant has the right to present at the sentencing phase all evidence about the “circumstances of the offense.” The circumstances of the murder in this case are key. Of course, it is true that Howard did not have to be the “triggerman” to be eligible for the death penalty. See Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987). Eligibility, however, does not mean that capital punishment must be imposed. A jury can sentence a person to death in accordance with the Eighth Amendment only after it considers all of the. mitigating evidence the defendant wishes to present. See Lockett, 438 U.S. at 608, 98 S.Ct. at 2966-67 (holding that defendant’s relatively minor participation in the crime is a mitigating factor that sentencer must consider); Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987) (Scalia, J.) (holding for a unanimous Court that sentencer in capital case must consider an extensive list of non-statutory mitigating factors). Howard must be allowed to present his side of the story.
The majority mistakenly assumes that the redacted evidence is only relevant to Howard’s intent to kill. But it has a broader relevance for sentencing purposes: it sheds light on whether Howard or Weldon committed the ultimate act that caused Ms. Le’s death. Indeed, even though Howard admitted he could not be sure who killed Ms. Le, a jury could find that Howard is less blameworthy from a moral standpoint than Weldon. This is because Weldon committed a conscious act to make sure Ms. Le would die. I readily concede that making a moral distinction here is extremely difficult. Is a murderer who chokes a victim until she loses consciousness as culpable morally as one who chokes her after she is unconscious, just to make sure she is dead? What if he chokes the murder victim, but lets go when he thinks she is just unconscious? What if he restrains the victim while another chokes her to death? The law tells us who is legally responsible for the murder in each ease. The law does not tell us whether the death penalty should be imposed in each case. It tells us only that the jury must have all the facts before making the sentencing decision.
A capital defendant is given broad latitude to offer mitigating evidence because “ ‘the penalty of death is qualitatively different’ ” than any- other sentence. See Lockett, 438 U.S. at 604, 98 S.Ct. at 2964 (quoting Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)). The death penalty’s irrevocable end has prompted the Supreme Court to require the sentencer in capital eases to consider a defendant’s violent and troubled youth, see Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); good behavior in prison, see Skipper v. South Carolina, 476 U.S. at 1, 4-5, 106 S.Ct. at 1669, 1670-71 (1986); history of child abuse and emotional problems, see Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); ineligibility for parole, see Simmons v. South Carolina, 512 U.S. 154, 162, 114 S.Ct. 2187, 2193, 129 L.Ed.2d 133 (1994); poverty-ridden childhood, see Hitchcock, 481 U.S. at 397, 107 S.Ct. at 1823-24; good deeds as an affection*429ate uncle, see id.; and childhood habit of inhaling gas fumes, see id.
Thus, virtually no limits are placed on a capital defendant’s ability to introduce mitigating evidence concerning his personal circumstances and the circumstances of his crime. See Eddings, 455 U.S. at 112, 102 S.Ct. at 875-76. The majority makes this court the first to hold that when two or more are guilty of the same murder, evidence about the identity of the actual killer is not relevant in mitigation at the sentencing phase. This position is particularly questionable in light of the Supreme Court’s holding in Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979) (per curiam). In that case the trial court refused to admit a statement by a third party that Green’s partner in an abduction had murdered the victim outside of Green’s presence. The Supreme Court reversed Green’s capital sentence because “the excluded testimony was highly relevant to a critical issue in the punishment phase of a trial,” namely whether Green participated directly in the murder. Id. at 97, 99 S.Ct. at 2151 (citing Lockett); see also Chaney v. Brown, 730 F.2d 1334, 1357 (10th Cir.1984) (upholding conviction but vacating death sentence because “[t]he withheld reports contained important mitigating evidence supporting the inference that another person or persons were involved in the kidnappings and murders, and that [the defendant] may not have personally killed the victims”).
One theme underlies the Lockett and Ed-dings line of cases: the sentencing jury alone, armed with the complete story, must decide the question of the capital defendant’s moral culpability. Yet here the majority steps into the jury box, reviews the unredact-ed statements, and decides the question of moral culpability against Howard. See ante at 419-20 (“Nothing in the redactions altered Howard’s personal culpability for Le’s death. Moreover, nothing in the redactions could be construed as mitigating evidence in Howard’s favor.”). The majority’s judgment is based on three determinations that must be left for a jury. First, the majority indicates that the omitted assertion (Weldon likely lolled the victim) is negated by the rest of what Howard said. But the state introduced most of what Howard said for its truth, suggesting that he was not completely unreliable. Compare Green, 442 U.S. at 97, 99 S.Ct. at 2151-52 (noting that prosecution had introduced Green’s confession in guilt phase). It is the jury, and not this court, who should decide whether the rest of what Howard said is reliable. Second, the majority notes that the unredacted confessions reveal Howard’s own uncertainty about “whether he or Weldon committed the final act of murder.” Ante at 420. It is true that Howard could not be sure that he removed the plastic bag in time. But a jury could decide that this uncertainty makes him less culpable than Weldon, who was a calculated and deliberate killer. Third, the majority suggests that the redacted portion simply inculpates Weldon instead of helping Howard. In this case, however, anything that makes Weldon look worse necessarily helps Howard because relative blameworthiness could be important to the jury in deciding whether to sentence one or both to death. Indeed, relative blameworthiness was important to one of the jurors on the panel that voted to sentence Howard to death. This juror was asked in voir dire about a murder case she was familiar with where three defendants were convicted of murder but only one was given .the death penalty:
Q. And what did you feel about Pierce’s sentence?
A. Well, I understand he was the only one that they decided killed her, and the other two also participated in the crime, but I understood the reason that he was sentenced to death was because he took the initiative to kill.
Q. All right. And what was your feeling about Pierce’s sentence?
A. Well, like I said, I was not in the courtroom. I didn’t hear all the — I read the paper, I kept up, with it through Mends, and I’m sure that the — I mean I trusted the jury’s decision.
Q. Did you have any question that they all should have gotten the death penalty or none should have gotten the death penalty?
A. I wasn’t surprised that the other two didn’t get the death penalty. I can understand how they decided that.
*430Q. Why weren’t you surprised?
A. Because Pierce was the one who killed her.
J.A. 368-69. This voir dire reveals that, if given a fully informed choice, a jury could choose to execute only the most morally culpable among a group of murderers. Howard’s jury was prevented from making that informed choice.7
The jury sentenced Howard to death without hearing his whole story to the authorities about the circumstances of the crime. The jury never knew that he claimed it was Weldon who likely committed the ultimate act of murder. Howard should not be put to death unless a jury rejects the mitigating evidence that was barred from his sentencing.
III.
In sum, I respectfully dissent for two reasons. First, the majority ignores Edwards and holds that it is immaterial whether Howard (who had invoked his right to counsel) initiated the contact with authorities that led to his confessions. Second, the majority ignores the Eighth Amendment and cases such as Lockett and Eddings when it usurps the jury’s role and decides that it was not mitigating when Howard said that Weldon took the final step to kill the victim. A jury must hear that statement before it decides whether Howard should die.
Judges K.K. HALL, MURNAGHAN, and DIANA GRIBBON MOTZ join in this dissent.. The majority assumes for purposes of its own analysis that Polk’s questioning of Howard was custodial interrogation. Yet the majority would deny me the same assumption. See ante at 412 n. 13. The assumption is sound because Miranda and Edwards protections should apply when a probation officer interrogates a suspect in custody before indictment or trial. See United States v. Andaverde, 64 F.3d 1305, 1311 (9th Cir.1995) ('‘[Cjustodial statements made to probation officers are subject to the same voluntariness analysis as statements made to other law enforcement *424officers’'). Of course, a probation officer does not have to give Miranda warnings before a noncustodial meeting, see Minnesota v. Murphy, 465 U.S. 420, 431, 104 S.Ct. 1136, 1144, 79 L.Ed.2d 409 (1984), or before a routine presentence interview, see United States v. Hicks, 948 F.2d 877, 885 & n. 8 (4th Cir.1991). Here, Howard was in jail, and Polk was definitely not conducting a presentence interview. Polk, then, was engaging in custodial interrogation if his approach to Howard was "reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Because Howard placed great trust and confidence in Polk, the meeting predictably turned into a confessional. The premise of custodial interrogation is therefore reasonable.
. The majority, ante at 413, quotes Howard (from the suppression hearing) on how he “opened up to [Heywood Polk] about everything.” After that testimony Howard continued as follows:
Q ... And as a result of opening up everything to [Polk], did part of that concern these charges that you are now on trial for your life for?
A Yes, sir. I think — let’s see, Heywood’s exact words were, "You need to try to get as less time as possible off of this stuff.” This is after I told him about the murders and other armed robberies and so forth, and he said that he had a friend in the F.B.I. that he was going to call to come up and talk to me in Buncombe County Jail.
App. at 1092.
. The majority misreads Howard’s briefs when it says that “Howard does not contend that his confessions to Agent Battle and Lieutenant Hitchins were made in violation of Edwards." Ante at 411. Howard builds an argument based explicitly on Edwards, beginning with the following summary:
Howard ... invoked his right to counsel, a right that was not respected when his federal parole officer approached and interrogated him while he was still in custody on those charges. In the course of that interrogation Howard agreed to talk to other law enforcement officials, and eventually made statements to FBI Agent Battle and South Carolina Detectives Hitchins and Christie.... The admission of these statements violated Howard's Fifth Amendment right against compulsory self-incrimination.
Appellant’s Opening Brief at 49; see generally id. at 49-56; Appellant's Reply Brief at 1-8.
. I repeat that Polk did not give Miranda warnings to Howard.
. The majority’s resurrection of the "voluntariness” question tramples on the simplicity of Edwards: "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." Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486, 489-90, 112 L.Ed.2d 489 (1990).
. Howard and Weldon were, of course, acting together. I therefore agree with the majority that Howard’s statement about Weldon's final act does not change Howard’s legal culpability for *428the murder under South Carolina law. In capital sentencing, however, the jury must make moral judgments that go beyond the question of legal responsibility.
. The majority also claims that excluding these statements was merely harmless error. The difficulty of reconstructing the moral decision that capita] sentencing demands suggests, at a minimum, that in order to be deemed harmless, the evidence must be irrelevant or trivial. In Hitchcock the unanimous Supreme Court held that the prosecution has the burden to prove that the defendant was not prejudiced by the exclusion of mitigating evidence. See Hitchcock, 481 U.S. at 397, 107 S.Ct at 1823-24; see also O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). The state has not even attempted to meet that burden here. In any event, the voir dire demonstrates that we cannot say with ajiy confidence that the jury would have come back with the same verdict of death if it had heard the full confession. When a court is "in grave doubt about whether a trial error of federal law had a ‘substantial and injurious effect or influence in determining the jury’s verdict,’ that error is not harmless. And, the petitioner must win." O’Neal, 513 U.S. at 436, 115 S.Ct. at 994. Sufficient doubt is created here because the voir dire reveals that at least one juror might consider evidence that Howard did not actually kill the victim to be mitigating.