with whom PARKER and DENNIS, Circuit Judges, join, dissenting:
Because I disagree with the en banc majority’s interpretation of the case law applicable in this case, and because I disagree with the en banc majority’s application of such law to the facts which are not disputed in this case, and because the en banc majority completely fails to address a ground for relief asserted by Soffar in this case, I respectfully dissent and write to express my reasons for such dissent.
I. Misinterpretation of Law
I have two serious disagreements with the legal analysis and reasoning of the en banc majority. First of all, the en banc majority states as a matter of established law that “in order to qualify as existing, a rule must be dictated by Supreme Court precedent, not Circuit Court precedent.” Majority op. at p. 592. In support of this legal principle, the en banc majority cites Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), and, specifically, the concurring opinion of Justice Thomas in that case. I note, however, that no other Justice on the Supreme Court joined in Justice Thomas’ concurring opinion; and, while Justice Thomas’ soliloquy on the “supremacy clause of the U.S. Constitution” is academically accurate, the issue that he discusses had absolutely no *599applicability to the decision making of the majority opinion in Fretwell. Furthermore, Justice Thomas’ concurring opinion does not speak at all to the issue for which the en banc majority cites it, i.e. that only Supreme Court precedent (and not Circuit Court precedent) can be used in determining what is “existing precedent” in applying the Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), anti-retroactivity rule. Even the majority opinion in Lockhart v. Fretwell does not address the issue for which the en banc majority cites it. To the contrary, the majority opinion in Fretwell points out: “The new rule principle, therefore, validates reasonable good faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Fretwell, 506 U.S. at 372-73, 113 S.Ct. 838 (citing Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990)). Note that the term “existing precedents” is not qualified as the en banc majority obviously wishes it were by the phrase “of the Supreme Court.”
And this quotation from Fretwell brings up the second major dispute I have with the en banc majority’s legal analysis. Towards the end of its opinion, the en banc majority states: “Because the rules in Nash, Cherry, and Wainwright prohibiting deceptive clarifying questions have never been dictated by the Supreme Court, we do not believe a state court at the time Soffar’s conviction became final would have felt compelled to follow the holding of these cases.”1 Obviously, the en banc majority did not conduct a very thorough “survey of the legal landscape” at the time Soffar’s conviction became final in October 1989. The en banc majority clearly missed the Texas Court of Criminal Appeals’ en banc decision in Russell v. State of Texas, 727 S.W.2d 573 (Tex.Crim.App.1987). In Russell, the Court of Criminal Appeals expressly reviewed and discussed the Fifth Circuit’s holdings in Nash and Wainwright and recognized the following rule, which it acknowledged had been applied by several of the courts of appeals in Texas:
When an accused’s desires are related in an equivocal manner, the interrogating officers are not required to automatically cease the interview. Instead, they are allowed to continue questioning; however, the questions must be specifically aimed at discovering the accused’s true desire. Further, any interrogating officer may not use the guise of clarification in order to coerce or intimidate the accused into making a statement. Nor may it be used to elicit further information about the event in question. (Emphasis added.)
Russell, 727 S.W.2d at 577. Later, in this same opinion, the Texas Court of Criminal Appeals stated:
In the instant case appellant never vocalized a desire to have counsel present. He merely sought opinions as to the necessity of having counsel present. Given the fact that appellant’s comments were clearly aimed at the necessity of having counsel present during interrogation, we will give him the benefit of the doubt. Thus, when appellant inquired of the interrogating officers whether they thought it necessary to have counsel present, the officers were under a duty to clarify appellant’s desires if they wanted to continue the interrogation.
Id. at 578 (citations omitted). Consequently, in my view, there is no need to speculate (as the en banc majority seems want to do) about whether the Texas *600Court of Criminal Appeals “would have felt compelled to follow the holdings of these cases.” Rather, the Texas courts did in fact adopt the holdings in Nash and Wainwright.
Finally, the en banc majority asserts the proposition that the holdings of Nash, Wainwright, and Cherry that “all questioning following an ambiguous invocation of the right to counsel [should] be limited to clarifying questions” was overruled by the Supreme Court’s decision in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994).2 The Supreme Court in Davis clearly recognized that in granting certiorari in that case it was doing so in order to decide “how law enforcement officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards prohibition on further questioning”; and it recognized that the Court had twice previously noted the varying approaches of the lower courts and that the Court was granting certiorari in order to address the issue on the merits. I agree with the en banc majority that from and after the date of the Davis opinion, i.e. June 24, 1994, the Davis opinion would be deemed to have overruled the portions of Nash, Wainwright, and Cherry which would have required clarifying questions when the suspect makes an ambiguous reference to the need for a lawyer. But Davis really does not speak to the question of what happens if the interrogating • officer does get into a dialogue with the suspect (as occurred here in Soffar) nor whether the interrogating officer can utilize that dialogue to persuade, trick, or cajole the suspect into waiving his Miranda rights (as happened here in Soffar).
II. Application of Law to Facts
I turn now to my disagreements with the en banc majority’s application of the law to the facts involved here in Soffar. 1 can think of no better way to open this discussion than to quote two pertinent'sentences from the majority opinion, as follows:
Afterwards, over the course of three days, Soffar signed three written statements confessing to the murders. The confessions were crucial to his conviction, because there was no physical evidence linking Soffar to the crime.
Majority op. at 592 (emphasis added.) These two sentences encapsulate the circumstances that take this case out of the ordinary run of the mill situation involving a suspect’s confession and put it in the category of special, unique, peculiar, and unusual. Some brief elaboration is appropriate.
Note, first of all, that Soffar was held in police custody for three days without benefit of access to counsel. He signed three different written statements. There are substantial inconsistencies between those three statements. The statements were typewritten by the interrogating officers outside of the presence of Soffar, and were based on the interrogator’s recollection of the dialogue that occurred between Soffar and the interrogator. No video tape or audio tape recording was made of any of these interrogations; and there was, therefore, no verbatim typewritten transcript of the interrogations preserved in the records of this case, as required under Texas law.3
*601In these statements, Soffar implicated his “running buddy” Latt Bloomfield as a co-participant with Soffar in the robbery/murder incidents at the bowling alley. According to these statements, Soffar and Bloomfield went to the bowling alley in Bloomfield’s car and used Bloomfield’s gun in the robbery/murders. Based on these statements, the Houston Police arrested Latt Bloomfield and placed him in a police line up for viewing by Greg Garner, the sole surviving victim of the shootings. Garner did not identify Bloomfield as being present at the bowling alley. In a similar fashion, the police placed Soffar in a line up for viewing by Garner and Garner did not identify Soffar as being at the bowling alley.
The police searched the apartment where Bloomfield lived and his car, but did not find a weapon of the caliber used to commit the shootings at the bowling alley. In fact, the police did not find any gun. And the police did not find any other object, cash or document, which could be identified as coming from the bowling alley. Similarly, while Soffar was in police custody, without counsel, the police searched his living quarters at home and found nothing that came from the bowling alley. The police finger printed both Sof-far and Bloomfield, but their prints did not match any of the finger prints retrieved by the police from the murder scene at the bowling alley.
As a result of this investigation, the police determined that they had no basis to hold Bloomfield in connection with the robbery/murders, and they released him from police custody. Bloomfield has never been charged at any time with any criminal conduct of any kind relating to the robbery/murders at the bowling alley. The determination that there was no basis to hold Bloomfield obviously undermines the truthfulness of Soffar’s statements.
Another aspect of this case that makes it unique and different, is the relationship between Soffar. and Officer Bruce Clawson of the Galveston County Sheriffs Department. Prior to Soffar’s arrest, Clawson had been deploying Soffar as an undercover drug informant for developing leads and information about drug activities in Galveston County. This relationship provided numerous opportunities for Clawson to get to know Soffar’s strengths and weaknesses, his mental limitations and emotional make-up, and how to manipulate him to get the information Clawson wanted developed. It is uncontradicted in the record that Clawson was summoned to the League City Courthouse when Soffar was arrested for motorcycle theft because the League City Police knew of the relationship between Soffar and Clawson, and that they expected Clawson to be of help in getting Soffar to open up to the police.
Clawson did not have any official duty, responsibility, task or involvement with the investigation of the bowling alley murders, which occurred in Harris County not Galveston County. The record also shows that Clawson negotiated with Soffar as to which police officer would be the interrogator about the bowling alley murders. Soffar did not want Officer Palmire (his old nemesis from Friendswood) to be the interrogator, and likewise, Soffar did not want Assistant District Attorney Wilson to be the interrogator.4 Clawson did get Sof-*602far to agree to submit to interrogation by Detective Schultz. The bottom line is that this relationship produced what Clawson described as a one-way friendship. Soffar considered Clawson to be his friend, but Clawson did not consider Soffar to be his friend.
With this background in mind, I turn to consideration of the facts and law relating to three critical issues in this appeal:
A. Did Soffar exercise his constitutional right to remain silent; and if so, what are the consequences thereof?
B. Did Soffar exercise his constitutional right to get assistance from counsel, and if so, what are the consequences thereof?
C. Did Soffar make a knowing and informed waiver of his Miranda rights as a result of his dialogue with Clawson?
A. Right to Remain Silent
As indicated earlier, Clawson arranged for Detective Schultz to interrogate Soffar about Soffar’s knowledge of the bowling alley murders. This interrogation began with Soffar, Schultz, and Clawson in the interrogation room. There is some testimony by Schultz that he thought a legal stenographer was also in the room taking notes of the interrogation; but, if such a person were there, the State was unable to locate any stenographic notes or any transcriptions as a result thereof, and no such person testified at the state habeas hearing to serving in that capacity. Likewise, it is clear that the interrogation by Schultz of Soffar was not recorded by any video tape recorder or any audio tape recorder. Clawson testified at the habeas hearing that in the beginning he remained in the room for about 15 minutes during which time Schultz was interrogating Soffar as to the physical premises at the bowling alley. From the difficulty that Soffar had in describing the premises, Clawson concluded that Soffar really didn’t know much about the facts, and Clawson left the interrogation room, but remained at the League City Police Office. About 30 minutes later, Schultz came out of the interrogation room and told Clawson that he (Schultz) had hit a brick wall and that Clawson needed to go back into the room and get Soffar talking again.
Discussion
Among the important safeguards established by Miranda is the “right to cut off questioning,” Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which serves as an essential check on “the coercive pressures of the custodial setting” by enabling the suspect to “control the time at which questioning occurs, the subject discussed, and the duration of the interrogation.” Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). This right is a “critical safeguard” of the Fifth Amendment privilege, Mosley, 423 U.S. at 103, 96 S.Ct. 321, and requires the police immediately to cease interrogating a suspect if he “indicates in any manner, at any time ... during questioning, that he wishes to remain silent.” Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602 (emphasis added); Mosley, 423 U.S. at 100-102, 96 S.Ct. 321.5 *603“[A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice.... ” Miranda, 384 U.S. at 474, 86 S.Ct. 1602. Here, by “refusing to talk” to Detective Schultz, Soffar invoked his constitutional right to remain silent. Mosley, 423 U.S. at 101-02, 96 S.Ct. 321 (defendant’s indication that he did not want to answer questions invoked his right to cut off questioning).6
Once Soffar invoked his right to silence by refusing to talk, the police were under an absolute obligation to “scrupulously honor” the right to remain silent and to immediately cease all questioning. Mosley, 423 U.S. at 104, 96 S.Ct. 321. Here, Schultz did break off the interrogation by leaving the room, but he immediately violated Soffar’s rights by sending in Clawson to override Soffar’s exercise of his right. In doing so, the police failed to honor Soffar’s right to remain silent, rendering inadmissible all statements subsequently obtained.
The State argues, and to my dismay the majority seems to be on the verge of adopting, the concept that a person must do something special to “invoke” his Miranda right to remain silent. This is sophistry beyond my ability to understand. What in the world must an individual do to exercise his constitutional right to remain silent beyond actually, in fact, remaining silent?
In my view, Detective Schultz failed to “scrupulously honor” Soffar’s right to remain silent and violated Miranda by sending in another person to try to talk Soffar into resuming the dialogue. This error *604was compounded by the fact that Clawson was the person sent in to get Soffar to resume talking — his prior knowledge, experience, and contact with Soffar gave him an advantageous position from which to work on Soffar. Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). Given the ability of interrogators to needle, tease, taunt, and repeat again and again, remaining silent in the thrust of such testing requires a genuine exercise of will power. Actions speak louder than words, and silence is “forbearance from speech,” the result of not speaking. To create some sort of magic password that the majority seems to want to do, and require this password to be spoken in order to exercise the right to remain silent, will result, tragically, in the dilution of this most fundamental constitutional right, i.e. the right to require the government to prove guilt beyond a reasonable doubt without relying upon any words from the mouth of the accused.
B. Right to Counsel
The second critical issue in this appeal is whether Soffar exercised his constitutional right to assistance from counsel during his dialogue with Clawson and, if so, the consequences thereof. This issue necessarily involves an evaluation of the dialogue that occurred between Clawson and Soffar after Clawson went back into the interrogation room to get Soffar talking again, as requested by Detective Schultz. The record is clear that there was no other person in the interrogation room except Soffar and Clawson; and again there was no video tape recording or audio tape recording made of this conversation. Clawson testified that his dialogue with Soffar lasted about 35 or 40 minutes. It is very troubling to me that the interrogation of Soffar did not include any form of live real time recording of the conversations. See Tex. Code Crim. Peoc. Ann. art. 3822 (1977). Technology was obviously available to make recordings of these interrogations because the police investigators made audio tape recordings of each of the four interviews with Garner, the surviving victim, and then those recordings were transcribed verbatim in question and answer form and were in the prosecutors’ files.7 Obviously, if a recording in some form had been made of the dialogue between Claw-son and Soffar, our tasks on appellate review would have been greatly simplified.8 We are left, therefore, to evaluate both the factual and the legal content of this dia*605logue based on the testimony of Clawson as it was developed at the state habeas corpus hearing. The words that were spoken by each of the parties as described by Clawson are not in dispute, intimations of the majority opinion to the contrary notwithstanding. Because the specific language used takes on such critical importance, I turn now to a separate and individual discussion and evaluation of each of the questions and answers between Soffar and Clawson:
Question No. 1:
Soffar asked: “Should I get an attorney or talk to the detective ?”
Clawson answered: “If [you were] involved in the crime, you should tell the detective [you were] in it; otherwise [you] should get a lawyer.”
Commentary:
There is nothing in Miranda itself, nor in any of its progeny, which draws any distinction between guilty and innocent suspects as far as being entitled to the Miranda protections. The only requirement for the protections contemplated by Miranda is that the suspect be “in police custody,” which Soffar clearly was in this case. Clawson’s answer to this question is completely inaccurate, inappropriate, and inconsistent with his obligations under Miranda. I would suggest that a reasonable answer by a reasonable police officer would be:
You have a constitutional right to have a lawyer present to help you during this interrogation whether you are guilty or innocent. On the other hand, you may talk to the police without a lawyer if you so choose. The choice is up to you and I can’t make that choice for you; but if you want a lawyer, you need to clearly say so as otherwise the police may assume you don’t want a lawyer.
Question No. 2:
Soffar asked: How do I get a lawyer?
Clawson answered: Can you afford to hire a lawyer on your own?
Commentary:
This answer is directly contrary to the language and spirit of Miranda. Clawson knew that Soffar didn’t have enough money to hire his own lawyer when he gave this answer and, in my view, Clawson gave this answer not to inform Soffar but to put Soffar in a position of dependency as he had been as an undercover informant for Clawson. Therefore, Clawson’s answer is totally non-responsive to the question asked by Soffar. In my view, a reasonable answer by a reasonable police officer would have been:
You can get a lawyer by hiring one of your own choice and agreeing to pay that lawyer’s fees and expenses yourself. If you don’t have enough money to pay for your own lawyer, you can sign an affidavit which says that; and the court will then appoint a lawyer to help you and the fees and expenses of this appointed lawyer will be paid for by the state.
Question No. 3.
Soffar asked: “When can I get a court-appointed lawyer?”
Clawson answered: “It could take as little as a day or as long as a month.”
Commentary:
The “as long as a month” portion of Clawson’s answer is just flat wrong and Clawson knew it. Clawson gave this answer because he knew from his prior experience with Soffar that Soffar could not think about anything past tomorrow, and Clawson intended to discourage Soffar by this long time estimate. Under Miranda, the length of time it may take to get counsel appointed is immaterial and irrelevant. In my view, a reasonable answer by *606a reasonable police officer would have been:
A day or two at the most, but you shouldn’t worry about how long it takes because during that time you have a constitutional right to remain silent and this interrogation will cease until your lawyer is appointed and you’ve had a chance to talk with him in private. Question No. 4.
Soffar asked: “So you are saying that I have to deal with this on my own?”
Clawson answered “yes” at one point in the state habeas hearing transcript and “I did not answer at all” at another part in the state habeas transcript.
Commentary:
Neither of Clawson’s answers are proper under Miranda. The “yes” answer is just plain wrong and totally inconsistent with the whole purpose of the Miranda requirements. If Clawson did not answer this question at all, Soffar would be left to make a decision based on an incorrect assumption and on a subject as to which he is not fully informed. I would suggest that a reasonable officer would make the following reasonable answer to Soffar’s question:
No, you don’t have to deal with it on your own. As I told you earlier, you have a constitutional right to get a lawyer to help you if that’s what you want.
The majority would like to dispose of this claim by Soffar under the rubric that mere ambiguous comments by a suspect that just mention an attorney will not be deemed sufficient to constitute a request for help from an attorney. I think the majority errs in applying that rubric to this case for three reasons.
First, from a pure language and grammar standpoint, there is nothing “ambiguous” at all about Soffar’s questions. They are each clear, unequivocable requests for information relevant and material to Sof-far’s making an intelligent and informed decision as to his desire for counsel. All of the cases upon which the en banc majority relies to support its conclusion that each of the questions asked by Soffar did not constitute a sufficiently clear request for an attorney, were cases where there was one random unconnected comment by the suspect on the subject of counsel and not a series of specific questions relating to getting the help of counsel as we have here in Soffar. In my view, there is a world of difference between one ambiguous comment and a specific request for information; and when you have to deal with a series of specific questions, the difference becomes even more critical.
Second, in each of the cases relied upon by the majority there was clear, irrefutable, and conclusive evidence connecting the confessing suspect to the crime under investigation. In such circumstances, it is understandable that a reviewing court would be reluctant to invalidate a conviction simply because of some random comment made by the suspect during his in-custody interrogation. It is inherent that the Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), review for compliance with Miranda requirements occurs after the circumstances of the interrogation itself and frequently after the suspect has already made inculpa-tory statements without the presence of counsel. Here, the assertion as to noncompliance with Miranda was not seriously raised at the Jackson v. Denno hearing and was only brought to light as the result of discovering new information developed during the state habeas corpus hearing. At that point, the fact that there was “no physical evidence linking Soffar to the crime” (as the majority characterizes the situation) was self-evident, and Soffar’s conviction and death penalty hang by the *607thread of how the reviewing court interprets the Clawson/Soffar dialogue.
Third, I disagree with the majority’s conclusion that, under Davis, Soffar did not make a sufficiently clear invocation of his right to counsel. As stated earlier, I believe the facts presented here fall outside Davis’ scope. However, assuming Davis is applicable I believe an accurate reading of Davis has to be made now through the lenses of the Supreme Court decision in Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). While Soffar’s case was on appeal in our Court, the Supreme Court handed down its decision in Dickerson. It held “that Miranda announced a constitutional rule that Congress may not supersede legislatively” and that for reasons of stare decisis, the Court declined to overrule Miranda itself. Dickerson, 530 U.S. at 444, 120 S.Ct. 2326. The en banc majority opinion here does not even recognize the existence of Dickerson.
Note that the Supreme Court in Dickerson used the past tense in stating that Miranda announced a constitutional rule and used the present tense in applying the rule of stare decisis as the reason for declining to overrule Miranda. I suggest, therefore, that the interpretation that should be drawn from Dickerson is that the rule announced in Miranda was in the beginning, is now today, and has always been in the interval a constitutional rule. In evaluating the strengths and applicability of Davis here in Soffar, we should recognize that the opinion in Davis is the “last of the Mohicans” of those opinions in which a majority of the Supreme Court characterized the Miranda rights as not being “required by the Fifth Amendment’s prohibition on coerced confessions” and instead characterized Miranda and its progeny as being the product of the prophylactic rule making power of the Supreme Court. See Davis, 512 U.S. at 458, 114 S.Ct. 2350. The decision of the Supreme Court in Dickerson has eliminated any meaning to this distinction.
Furthermore, in evaluating the strength and applicability of Davis, I would point out the substantial differences in the factual circumstances under which the issue of invocation of the right to counsel took place in Davis from the circumstances involved here in Soffar. The following is a direct quote from the majority opinion in Davis:
About an hour and a half into the interview, petitioner [Davis] said “Maybe I should talk to a lawyer.”
According to the uncontradicted testimony of one of the interviewing agents, the interview then proceeded as follows:
[We made] it very clear that we were not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, that we weren’t going to pursue the matter unless we have it clarified whether he is asking for a lawyer or is just making a comment about a lawyer and he said “no, I’m not asking for a lawyer” and then he continued on and said “no, I don’t want a lawyer.” After a short break the agents reminded petitioner of his rights to remain silent and to counsel. The interview then continued for another hour until petitioner said “I think I want a lawyer before I say anything else.” At that point, questioning ceased.
Davis, 512 U.S. at 455, 114 S.Ct. 2350 (citations omitted). Later on in the Davis majority opinion, the Court states:
Of course, when a suspect makes an ambiguous or equivocal statement, it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. *608That was the procedure followed by the NIS agents in this case [Darns].
Id. at 461, 114 S.Ct. 2350.
The en banc majority opinion reads the language of Davis very strictly and literally as requiring a suspect being interrogated by police to expressly and explicitly say “I want a lawyer” in order to validly assert his right to have counsel present, regardless of the dialogue and interchange of comments that might have actually occurred. In my view, the proper test as articulated by the Court in Davis is the following:
Although a suspect need not speak with the discrimination of an Oxford don, ... (Souter, J. concurring in judgment), he must articulate the desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.
Id. at 459, 114 S.Ct. 2350 (citation omitted). This objective test of what a reasonable police officer “would understand under the circumstances” would seem far more appropriate in protecting what Dickerson now clearly holds is a constitutional right. Additionally, the Supreme Court has in the past “given a broad, rather than a narrow interpretation” to requests for counsel, see Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); Connecticut v. Barrett, 479 U.S. 523, 529, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987); and has instructed that courts “indulge every reasonable presumption,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); that a suspect has not waived his right to counsel under Miranda, see, e.g., Oregon v. Bradshaw, 462 U.S. 1039, 1051, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) (Powell, J. concurring) (“We are unanimous in agreeing that the [.Miranda ] right to counsel is a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard.”).
The reasonable officer test calls for a conclusion of law on the part of the reviewing court as to whether the Soffar/Clawson dialogue constituted a sufficient invocation of Soffar’s rights to counsel during the interrogation. In my own mind, I doubt that Officer Clawson could qualify as a reasonable police officer because he was charged with the mission of getting Soffar to resume talking to Officer Schultz; and Clawson knew that Soffar would say “yes” if he ever asked Soffar a clarifying question as to whether or not he wanted an attorney. So Clawson never followed the track suggested as good police practice by the Supreme Court in Davis; but, even so, he admitted in his state habeas testimony that he understood Soffar’s questions to indicate that Soffar wanted a lawyer.
The Supreme Court decision in Dickerson did not establish a “new rule” and is thus fully applicable to this case. Significantly, it confirmed the continuing vitality of Miranda, and thus made clear that, because its prescription is a constitutional requirement, Miranda’s protections cannot be diluted, much less negated. Dickerson reiterated that Miranda was intended to curb precisely the kind of oppressive and overbearing interrogation tactics that produced the statements at issue here. As Chief Justice Rehnquist declared for the Court: “After discussing the ‘compelling pressures’ inherent in custodial police interrogation, the Miranda court concluded that, ‘[i]n order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively appraised of his rights and the exercise of those rights must be Jully honored.’ ” Dickerson, 530 U.S. at 440, 120 S.Ct. 2326 (emphasis added).
*609The en banc majority relies heavily upon the state habeas court’s finding that Claw-son believed that Soffar had not “invoked his right” to an attorney as determinative of the legal issue presented. However, a police officer’s “belief’ (even if honestly held) regarding a relevant legal issue— whether Soffar invoked his constitutional right to counsel — simply cannot be disposi-tive of that issue. Under 28 U.S.C. § 2254 (pre-AEDPA), federal courts “have an independent obligation to say what the law is,” Williams v. Taylor, 529 U.S. 362, 384, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (opinion of Justice O’Connor for the Court) (quoting Wright v. West, 505 U.S. 277, 305, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992)). Thus, the legal opinion of the interrogating police officer is subject to de novo-federal court review just like that of a state court. Clawson’s acknowledgment that, at the time in question, he did understand that Soffar was telling him that he wanted an attorney is the definitive historical fact, and conclusively shows that Soffar did invoke his right to counsel. Because Claw-son knew that Soffar wanted an attorney, the police were prohibited from interrogating him until counsel was present. Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602 (1966); Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988). Because they failed to “scrupulously honor” this right, the statements Soffar signed should be suppressed.
C. Knowing and Informed Waiver
The Miranda decision imposes more than a mere requirement that warnings be provided at the beginning of an interrogation. The warnings were intended to secure what the Court made clear was the basic requirement to “assure a continuous opportunity [to a suspect] to exercise” his rights at any point during an interrogation. 384 U.S. at 444, 86 S.Ct. 1602 (emphasis added). By elevating form over substance, the en banc majority has lost sight of the purpose underlying the Miranda warnings. The police must not only dispel, at the outset, the coercive' atmosphere that is inherent in the surroundings of custodial interrogation; they must also ensure that it does not return. 384 U.S. at 445-58, 86 S.Ct. 1602.
The en banc majority believes that Officer Clawson’s dubious statements could not have nullified Soffar’s waiver of his Miranda rights, because Soffar had already waived them by the time Officer Clawson started his fateful interrogation and provided his “misleading answers” to Soffar’s questions about his right to counsel.9 The Supreme Court specifically rejected this analysis: “Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process." Miranda, 384 U.S. at 469, 86 S.Ct. 1602 (emphasis added). The Court pointed out that a one-time warning, delivered at the outset “by those who will conduct the interrogation, cannot itself suffice to that end_” Id.10 To emphasize this *610point, the Court added, “there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking” his rights. 384 U.S. at 475-76, 86 S.Ct. 1602. Finally, and " of direct relevance here, the Court stated that “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive” his constitutional rights. Id. at 476, 86 S.Ct. 1602.
This absolute proscription of threats, trickery, and deceit in connection with waivers of constitutional rights, at any time “throughout the interrogation process” was by no means a new concept introduced in Miranda. Prior to Miranda, the Supreme Court had made clear that the use of such tactics would result in the invalidation of any purported waiver of constitutional rights and a finding that any statement given had been coerced. For example, in Spano a police officer who the defendant believed was a friend overcame his desire not to talk to the police by lying to him, telling him that “his job was in jeopardy” because of the suspect’s unwillingness to talk, and that “the loss of his job would be disastrous to his three children, his wife and his unborn child.” Spa-no, 360 U.S. at 323, 79 S.Ct. 1202. The Court held that Spano’s “will was overborne” by “sympathy falsely aroused,” and that, accordingly, his subsequent statement was involuntary. Id. As the Court has pointed out, it has held that “affirmative misrepresentations by the police [are] sufficient to invalidate a suspect’s waiver of the Fifth Amendment privilege,” Colorado v. Spring, 479 U.S. 564, 576, n. 8, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987), and has precluded statements given when a “waiver” was obtained after threats, trickery or deceit were employed.11
The Supreme Court has set a high standard of proof for the waiver of constitutional rights, pursuant to which courts should “ ‘indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). “The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great” to demonstrate a valid waiver. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). “Doubts must be resolved in favor of protecting the constitutional claim.” Michigan v. Jackson, 475 U.S. 625, 633, 106 S.Ct. 1404, 89 L.Ed.2d *611631 (1986). The mere fact that a suspect spoke to the police is no evidence at all that he knowingly and intelligently waived his right against self-incrimination. Tague v. Louisiana, 444 U.S. 469, 470-71, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980). To the contrary, where “the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, 384 U.S. at 475, 86 S.Ct. 1602.
III. Due Process Voluntariness
Finally, I want to register my disagreement with the en banc majority because they ignore completely and fail to address another theory upon which I believe Soffar has established his right to habeas corpus relief. That theory is the Supreme Court’s long-established “due process voluntariness” test. This test is summarized in the Supreme Court decision in Miller v. Fenton, 474 U.S. 104, 109-10, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985),12 wherein the Court stated:
The Court’s analysis has consistently been animated by the view that tactics for eliciting inculpatory statements must fall within the broad constitutional boundaries imposed by the Fourteenth Amendment’s guarantee of fundamental fairness.
In over 30 different decisions, the Supreme Court refined this test into an inquiry that examines “whether a defendant’s will was overborne” by the circumstances surrounding the giving of a confession, Schneckloth v. Bustamonte, 412 U.S. 218, 223, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); and by indicating that the due process test takes into consideration “the totality of the surrounding circumstances — both the characteristics of the accused and the details of the interrogation,” id.; and by specifying that the due process test is determined by “a weighing of the circumstances of pressure against the power of resistance of the person confessing.” Stein v. New York, 346 U.S. 156, 185, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953). The continued viability of this due process test of involuntariness was affirmed again by the Supreme Court in Dickerson, where the Court stated:
We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily.
530 U.S. at 434, 120 S.Ct. 2326. Furthermore, in Dickerson, the Supreme Court stated:
The requirement that Miranda warnings be given does not of course, dispense with the voluntariness inquiry but as we said in Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), “[cjases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that law enforcement authorities adhered to the dictates of Miranda are rare.” Id. at 433 n. 20, 104 S.Ct. 3138.
Dickerson, 120 S.Ct. at 2336.
With all due respect, I suggest to my colleagues in the en banc majority that Soffar’s case is one of “those rare cases” in which a self-incriminating statement was compelled despite the fact that the law enforcement authorities attempted to adhere to the dictates of Miranda; but this is not the first time that our Court has *612been called upon to address one of these “rare” cases. In Jurek v. Estelle, 623 F.2d 929 (5th Cir.1980),13 Judge Reynaldo Garza, writing for the en banc majority, held that after a full review of all of the facts and circumstances, the second of two written confessions that Jurek signed was the result of “factors suggesting an inescapable conclusion that the confession was involuntary.” Id. at 942. In footnote 7 of his majority opinion, Judge Garza stated:
The precise holding of this opinion, based on an analysis of the cumulative impact of these factors, is no more or less than the following: Where a (1) mentally deficient accused, who was (2) functionally isolated from all but his interrogators (3) who was not assisted by counsel (4) and who had executed a valid confession to murder, essentially solving the crime under investigation was (5) the subject of continuing purposeful and suggestive interrogation directed (6) toward an amendment of his earlier confession to include information so minimally suggested as to amount to a prosecutorial “hunch,” the renewed interrogation producing (7) a confession which is facially suspect and which (8) achieves the precise result sought by the prosecutors, (9) enhancing in a manner unknown to the accused the potential penalty to that of death, a consideration which would cause any person made aware of it to pause and carefully consider the truthfulness of any additional information suggested, the risk of involuntariness is so great that the confession cannot be admitted in consistency with due process guarantees and the privilege against self-incrimination.
623 F.2d at 941 n. 7.
In concluding his en banc majority opinion in Jurek, Judge Garza stated:
We are mindful of Justice Frankfurter’s admonition that the conviction is “basic to our legal order, that men are not to be exploited for the information necessary to condemn them before the law [and] that, in Hawkin’s words, a prisoner is not to be made the deluded instrument of his own conviction.” Culombe v. Connecticut, 367 U.S. [568,] at 581, 81 S.Ct. [1860,] at 1867[, 6 L.Ed.2d 1037 (1961)]. We are also mindful of the necessities and difficulties of effective law enforcement, in which the confession may be an essential and fair device for the protection of the public. We have found that in their efforts to secure such protection by insuring that Jurek was condemned, the law enforcement authorities ran far too high a risk of making him the deluded instrument of his own execution.
623 F.2d at 942.
I am disappointed that the en banc majority here in Soffar was either unable or unwilling to see the obvious similarities between Soffar and Jurek. Both Jurek and Soffar were, at the time of arrest, in their early twenties; neither remained in school past the seventh grade and both had difficulty holding any kind of job. The record in Soffar is overflowing with testimony that Soffar was “mentally deficient” just like Jurek. The record is uncontested that Soffar was “functionally isolated from all but his interrogators” for almost three days — a longer period of time than Jurek was. The record is explicit that Soffar did not have the assistance of counsel until after he signed his third statement. The third statement was the one presented to the jury at Soffar’s trial, like Jurek’s see-*613ond statement. Like Jurek’s two statements, Soffar’s three different statements were factually and grammatically different. Finally, in Jurek, as in Soffar, there was controversy about whether or not the suspect in custody effectively asked for assistance of counsel. In Jurek, however, there was clear evidence in the record that the interrogators made further inquiry of Ju-rek to clarify his wishes and he expressly declined the assistance of counsel. Even so, the circumstance of Jurek’s lack of assistance of counsel was a factor considered in making the judgment on the volun-tariness of his confessions.
In addition to these similarities with Ju-rek, there are certain special circumstances that occurred in Soffar, which must be considered in a “due process vol-untariness” analysis. First, in between Soffar’s signing of his first statement and of his second statement, Soffar was taken to a line-up arranged for viewing by the surviving witness, Greg Garner. Garner failed to identify Soffar as the perpetrator of the robbery/murders. Obviously, Soffar did not have the benefit of any counsel being present at this line-up and the record does not indicate that the detectives conducting this line-up advised Soffar that Garner had failed to identify him. Second, after -Soffar signed his second statement but before he signed the third statement, two other significant events occurred: (i) the interrogating detectives released Latt Bloomfield from custody because “they did not have enough evidence to either hold or charge Bloomfield”; and (ii) the arresting detectives filed felony capital murder charges against Soffar alleging that he intentionally caused the death of one of the victims while in the course of committing or attempting to commit armed robbery. Upon the filing of these formal charges, surely due process would mandate that the detectives promptly present Soffar before a magistrate judge for the purpose of apprising him of these new formal charges and for the purpose of determining his need for counsel.14 But instead of presenting Soffar before a magistrate judge for arraignment on the murder charge, the interrogating detectives continued their interrogation and, later that same evening, Soffar signed the third statement. Sof-far’s first two statements respecting the offense indicated that his role was limited to being the driver of the get-away car. The third statement was a far more incriminating version of purported “events” in which Soffar implicated himself in the actual shootings.
Given all of these circumstances, I come easily to the same conclusion that Judge Reynaldo Garza reached in Jurek; in their efforts to secure protection of the public by ensuring that Soffar was condemned, the law enforcement officers ran too high a risk of making him the deluded instrument of his own execution.
CONCLUSION
I know the record in this case as well as any other Judge who has ever addressed it and better than most of the Judges on this Court. I wrote the panel opinion, see 237 F.3d 411, to provide a comprehensive overview of the history of this case because I was convinced that this is one of those special, unique and peculiar cases which demands a consideration of the totality of the circumstances in order to reach a just result. I have laid awake nights agonizing over the enigmas, contradictions, and ambiguities which are inherent in this record. However, my colleagues in the en banc majority have shut their eyes to the big picture and have persuaded themselves that piecemeal justice is sufficient in this *614case. That is, of course, their privilege but I am glad I will not be standing in their shoes, if and when Soffar is executed solely because of the third statement he signed in this case.
. See Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979) (en banc); Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979); United States v. Cherry, 733 F.2d 1124 (5th Cir. 1984).
. Davis is a non-capital case heard by the Supreme Court on direct appeal from the Court of Military Appeals some five years after Soffar’s conviction became final.
. See Tex.Code Crim. Proc. Ann. art. 38.22 (1977); see also Alfaro v. Texas, 638 S.W.2d 891 (Tex.Crim.App.1982).
. In footnote 4 of its opinion, the en banc majority cites a finding by the state habeas judge that Soffar's refusal to talk to these two officers "was not an invocation of the applicant's [Soffar's] right to remain silent." As to the fact of Soffar's refusal to talk to these two officers, the state habeas court is factually correct; but as to whether such refusals constituted an invocation of the right to remain silent, the state habeas court's determination is a conclusion of law, which does not bind this Court on review. Furthermore, that con-*602elusion is irrelevant and immaterial to the critical determination of whether Soffar exercised his right to remain silent during his interrogation by Detective Schultz.
. The Supreme Court decision in Davis does not address in any way this Miranda right to remain silent. Moreover, Soffar’s claim in this case that he invoked his right to remain silent does not depend on any arguably "ambiguous” statement, but on the facts and circumstances set forth in the state habeas findings and conceded by the state ("Detective Schultz came out of the interview room and *603told Bruce Clawson that he had hit a brick wall,” State Court Findings, p. 77, ¶ 8); Claw-son's testimony ("... a detective came and told me Max was refusing to talk and asked me to see if I could get Max to talk again,” Clawson Aff. ¶ 19), and his uncontroverted account of his session with Mr. Soffar; and the end result of Clawson's interview, the resumption of interrogation by Schultz, together with Clawson's candid assessment of that result ("All in all, I was used to getting Max to talk.” Clawson Aff. ¶ 16).
. Accord, Charles v. Smith, 894 F.2d 718, 725-26 (5th Cir. 1990) (defendant’s refusal to talk to police invoked his right to cut off questioning); United States v. Hernandez, 574 F.2d 1362, 1368-69 (5th Cir.1978)(defen-dant’s refusal to answer questions invoked his right to cut off questioning); Nelson v. Fulcomer, 911 F.2d 928, 932-34 (3d Cir.1990) (defendant’s refusal to talk to police invoked his right to cut off questioning); United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988) (defendant’s silence and refusal to respond to police questioning invoked his right to cut off questioning); Christopher v. Florida, 824 F.2d 836, 840-41 (11th Cir.1987)(defen-dant’s refusal to talk to police invoked his right to cut off questioning); United States v. Poole, 794 F.2d 462, 465-67 (9th Cir. 1986) (defendant's statement that he had "nothing to talk about” invoked his right to cut off questioning); Martin v. Wainwright, 770 F.2d 918, 922-24 (11th Cir.1985) (defendant's statement "can’t we wait until tomorrow” invoked his right to cut off questioning), modified in respects not relevant, 781 F.2d 185 (1986); Anderson v. Smith, 751 F.2d 96, 101—05 (2d Cir. 1984) (defendant’s refusal to talk to police invoked his right to cut off questioning); Robinson v. Percy, 738 F.2d 214, 220 (7th Cir. 1984) (defendant’s statement that he did not want to talk with the police invoked his right to cut off questioning); Watson v. State, 762 S.W.2d 591, 597 (Tex.Crim.App. 1988) (defendant's silence and refusal to answer questions during interrogation invoked his right to cut off questioning); Faulder v. State, 611 S.W.2d 630, 640 (Tex.Crim.App. 1979) (en banc) (defendant’s request that he be allowed time to get matters straight in his mind before answering questions invoked his right to cut off questioning); Hearne v. State, 534 S.W.2d 703, 706-07 (Tex.Crim.App. 1976) (defendant’s refusal to talk to the interrogating officer invoked his right to cut off questioning).
. As already noted, a statute of the State of Texas that was in full force and effect at the time of Soffar's interrogations would have seemed to make the recording of oral interrogation of a suspect in police custody standard operating procedure. See Tex.Code Crim Proc. Ann art. 38.22 (1977). Why that procedure was followed in the case of Garner and not in the case of Soffar is one of the many puzzling enigmas in this case.
. The evil that Miranda addresses is the practice of police interrogation of a suspect in custody which occurs in a separate room, preferably without windows, by several police officers, over extended periods of time, the purpose of which is to put pressure on the suspect to talk by isolation, fear, fatigue, intimidation, vigorous cross-examination, and other techniques which have been developed and dissiminated to make such interrogations as effective as possible. Given the low cost and widespread availability of video taping equipment, a significant improvement in the application and enforcement of Miranda rights could be achieved, in my opinion, by a statute or court rule requiring (1) that all interrogations of a capital murder suspect must be video taped in real time with elapsed time shown on the tape; (2) that such tape must be preserved for a period of ten years after the interrogation; and (3) that if such interrogation was conducted without the presence of counsel for the suspect, such tape would be made available for viewing by such counsel immediately upon his employment or his appointment.
. The fact that confessions made under coercive circumstances are often, as in this case, accompanied by explicit "waivers” of rights or statements that "no threats or promises” were made cannot signify the end of a court’s inquiry. "Common sense dictates ... that if the authorities were successful in compelling the totally incriminating confession of guilt,” the same authorities would have "little, if any, trouble” obtaining a written "concession of voluntariness” and waiver of any rights. Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).
. Thus, the en banc majority's observation that Soffar was "read his Miranda rights at least four times,” is not dispositive. What ' matters is what the police did when it count*610ed — when Soffar inquired as to the content of his rights.
. Thus, in Smith v. Illinois, 469 U.S. 91, 98 and n. 8, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984), the Court found that a police officer's statement ("You either have to talk to me this time without a lawyer being present and if you do agree to talk with me without a lawyer being present you can stop at any time you want to”) constituted "overreaching” and "badgering,” and it approved the Illinois Supreme Court dissent's statement that the officer’s statement was "seriously misleading” because it "imparted” to the suspect that "he had to talk to the interrogator.” See also, Edwards, 451 U.S. at 479, 101 S.Ct. 1880 (suspect was advised that "he had” to talk to police); Rogers v. Richmond, 365 U.S. 534, 538, 542, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) (police overcame refusal to talk by threatening "to take his wife and foster children into custody,” despite lack of probable cause for, or intention to take, such action; the Court rejected the state's argument that "artifice or deception” in getting a waiver is permitted if it is not likely to affect the "reliability” of a confession); Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (police overcame refusal to talk by telling suspect that, if she did not "cooperate,” her children would be taken from her); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954) (psychiatrist with knowledge of hypnosis, introduced to suspect as "doctor" who would provide relief from painful sinus, overcame refusal to talk and obtained confession).
. Obviously this decision was “on the legal landscape” at the time Soffar's conviction became final in 1989.
. The opinion in Jurek was issued on August 10, 1980, just three days after Soffar was charged in this case; and would obviously be "on the legal landscape” at the time Soffar's conviction became final in 1989.
. See Tex.Code Crim. Proc. Ann. art. 14.06.