In this case we decide whether police interrogators violated Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), in the course of taking an incriminating statement from a youth arrested for, and later convicted of, murdering a restaurateur with a butcher knife.

In October of 1973, the petitioner in this case, Larry Thompson, fatally stabbed Richard Dean, the night manager of the Royal Castle Restaurant, following Thompson's aborted attempt to pilfer the cafe's cash register.1 Realizing the probable consequences of his action, Thompson fled from Orlando, Florida, where the killing took place, to his parents' home in Indianapolis, where he remained for several days before surrendering to authorities. Law enforcement officials returned Thompson to Orlando and to Orange County's correctional facilities. Within the week following, Thompson was taken to an interview room for questioning by Officers Cunningham and Latham of the Orlando Police Department. After having been advised of his Miranda rights, Thompson signed a waiver card and announced his desire to make a statement but added that he first wanted to tell his story to an attorney. Officer Cunningham responded, essentially, that an attorney could not relate Thompson's story to the police, and Latham explained that an attorney would probably advise him to say nothing.2 Thompson then proceeded with his statement, which the state later used at trial both to corroborate the testimony of an eyewitness and to impeach Thompson's own account of the stabbing. At the close of the evidence, the jury found Thompson guilty of first-degree murder.

Thompson's attorney twice challenged the admissibility of his client's incriminatory statement, first at a pretrial suppression hearing and again at the trial itself, through a motion to suppress offered immediately after the cross-examination of Officer Latham. The state trial court rejected both pleas to suppress, finding the evidence to show that Thompson had fully understood his Miranda rights and had voluntarily waived them. As the state judge observed, not only had Thompson signed a waiver card and expressed an understanding of his rights to the interrogating officers, but he also testified at the suppression hearing that he had understood his right to remain silent at the time of his interrogation. After the Supreme Court of Florida affirmed his conviction, See Thompson v. State, 328 So. 2d 1 (1976), Thompson sought a writ of habeas corpus in federal district court, where a second judge heard testimony and concluded that petitioner had voluntarily and intelligently waived his right to silence. Thompson appeals this last ruling here.

In reviewing factual determinations of state courts federal district courts grant habeas relief only upon convincing proof of error, See 28 U.S.C. § 2254(d) (1970); Coursey v. Beto, 455 F.2d 474 (5th Cir. 1972). Taking into consideration the limited scope of our factual review, on the record before us we could not say, absent the request for an attorney, that clear error was committed by any of the three courts that previously found a knowing, intelligent, and voluntary waiver. Although Thompson was only seventeen at the time of his interrogation, both state and federal district judges found him to be unusually articulate and a voracious reader;3 and while Thompson claims not to have comprehended the waiver card's exact import,4 it is undisputed that he understood his right to remain silent at the time of his interrogation. Moreover, by Thompson's own admission at the suppression hearing, he made his statement free of any threat or coercion.

The more troublesome issue in this case is whether Officers Cunningham and Latham violated the Per se rule, established in Miranda5 and well recognized in this circuit,6 that requires all custodial interrogation to cease once the suspect asks for an attorney. In resolving this question, we turn to the closely analogous case of Nash v. Estelle, 597 F.2d 513 ((5th Cir. 1979) (en banc)), in which we held that an equivocal request for counsel, one accompanied by an expressed willingness to talk, did not preclude all further conversation between the suspect and the interrogating officer. The specific facts of that case were these: Following his arrest on suspicion of murder, Nash was questioned by Assistant District Attorney Files, who began the interview by advising the accused of his rights and by explaining the waiver card, which Nash was having difficulty reading. During the explanation, Nash inquired whether he had to request an attorney in writing, and Files responded that he could do so orally. Nash then asked "to have (counsel) appointed," at 516, which prompted this statement from Files: "Okay. I had hoped that we might talk about this, but if you want a lawyer appointed, then we are going to have to stop right now." Id. at 516. At this juncture, Nash protested mildly that he wanted to talk, and, after Files had made certain of Nash's desire to do so without presence of counsel, he asked Nash to sign the waiver card and to give his statement. Observing the contradiction between Nash's expressed desires to have an attorney and to make a statement,7 we affirmed the admission of his incriminating statement, holding that an interrogator may seek clarification of the accused's wishes in the instance of an equivocal request for counsel.

The facts of the instant case resemble those of Nash but with a crucial difference, which dictates a different result here. There the prosecutor's further inquiries after Nash's reference to having an attorney were limited to clarifying his equivocal request; and there we held, in a nutshell, that whenever even an equivocal request for an attorney is made by a suspect during custodial interrogation, the scope of that interrogation is immediately narrowed to one subject and one only. Further questioning thereafter must be limited to clarifying that request until it Is clarified. When and if it is clarified as a present desire for the assistance of legal counsel, All interrogation must cease until that is provided, just as in the case of an initial, unambiguous request for an attorney. And no statement taken after that request is made and before it is clarified as an effective waiver of the present assistance of counsel can clear the Miranda bar. Thus, by our holding in Nash, we avoid attributing a talismanic quality to the word "attorney" falling from a suspect's lips, while at the same time safeguarding his right to the assistance of counsel when he wants it and says so.

Decision of this case requires that we make explicit what seems clearly implicit in Nash, that the limited inquiry permissible after an equivocal request for legal counsel may not take the form of an argument between interrogators and suspect about whether having counsel would be in the suspect's best interests or not. Nor may it incorporate a presumption by the interrogator to tell the suspect what counsel's advice to him would be if he were present. Such measures are foreign to the purpose of clarification, which is not to persuade but to discern.

These observations decide our case. The officers' own words, quoted above at note 2, make plain that both persuasion and presumption took place here. Officer Cunningham's explanation of the consequences of the suspect's talking to counsel might have been innocuous, even proper, had it been correct. Certainly Mr. Files' explanation in Nash's case that he and the suspect could talk no further about his crime if he wanted counsel before doing so was proper. But even such explanations are perilous and, if given, must not be materially incorrect.

Here they were incorrect: it was simply not true, as Thompson was told, that "if he told his attorney he could not tell his side of the story." Such advice is clearly subject to the interpretation indeed, it is its most natural one that if Thompson told his attorney his version of the killing, he could never tell it to anyone else, could not even testify in his own behalf should he later choose to do so. Its mildest possible reading is as what Officer Latham's later "advice" made explicit, that if Thompson consulted an attorney he would be told by him to say nothing more to the police. This may very well have been counsel's advice, though not necessarily so. The point is that counsel's advice about what is best for the suspect to do is for counsel, not the interrogator, to give. And it is for him to give after consultation with his client and after weighing where the suspect's best interests lie from the point of view of the suspect, not from that of a policeman be he ever so well intentioned. Until this occurs, it is simply impossible to predict what counsel's advice would be; and even if it were, the right to advice of counsel surely is the right to advice from counsel, not from the interrogator.

It follows from the above that Thompson's incriminating statement, taken under the circumstances described and after he was misled into abandoning his equivocal request for counsel, was gotten in violation of Miranda. It was used, not merely for impeachment,8 but in the government's case in chief. This was error, which can scarcely have been harmless.9 His conviction cannot stand, therefore, and the writ must issue, conditioned that the state retry him or release him within a reasonable time. For the entry of such an order, the cause is

REVERSED AND REMANDED.

I think the judgment of the district court should be vacated and the cause remanded, with leave to take additional testimony, for further consideration in the light of Nash v. Estelle.