If you are following this blog or have visited my Facebook page, you already know that I am writing a book about one of my Branch cousins, a man named Edward Tillman Branch. Born in 1901 in Attala County, Mississippi, the man was known by most who knew him by one name, simply "Tillman." His name and his reputation as a bootlegger are still the subject of a few conversations among some of the older residents who knew him. Although Tillman was born and raised in Attala County, he spent much of his adult life near Goodman, where he lived with his wife and his second family of three children.
In Goodman, Tillman owned and operated a store known as The Long Branch or "Branch's Store." And just south of Goodman, Tillman owned a night spot known as The Blue Flame, or as it was referred to by locals, "Tillman's Place" or "The Spot." Although Tillman's relatives often remember him with fondness as a kind and helpful man, his propensity for being stern and sometimes outright mean in his dealing with others, is a common thread with many who knew him.
Tillman's club had a reputation for being rowdy. And as a long-time proprietor, Tillman was certainly aware of the dangers of having large groups of revelers fired up on moonshine under one roof on a Saturday night. But even the small troop of rough, tough, physical enforcers that Tillman hired to keep order in the club, were not enough to stop the gunshot that took his life early on Easter Sunday morning 1963. The shooter was an 18-year old black man named Matthew Winter, who had left the club and returned with a gun. Winter was arrested later that day, subsequently plead guilty, and was sentenced to life in Parchman State Penitentiary in Drew, Mississippi. Although early law enforcement documents are no longer available, an account of the incident can be read in a decision to an appeal filed in the United States District Court, Northern District of Mississippi, Greenville Division. The text of the appeal court's decision, dated November 1, 1971, appears below.
333 F.Supp. 1033
(1971)
Matthew WINTERS, Petitioner,
v.
Thomas D. COOK, Superintendent of the Mississippi State Penitentiary,
Respondent.
United States District Court, N. D.
Mississippi, Greenville Division.
November 1, 1971.
Roy Haber, Jackson, Miss., for petitioner.
Guy Rogers, Asst. Atty. Gen., Jackson, Miss., Pat Barrett,
Lexington, Miss., for respondent.
MEMORANDUM OPINION
KEADY, Chief Judge.
Matthew Winters, the petitioner, on October 21, 1963, entered a
plea of guilty in the Circuit Court of Holmes County, Mississippi, to a charge
of murder, was convicted upon such plea, and on October 24, 1963, was sentenced
by the Circuit Court of Holmes County to life imprisonment. Petitioner is
presently confined at Mississippi State Penitentiary, Parchman, Mississippi,
pursuant to that sentence. Subsequently, petitioner filed in the Circuit Court
of Holmes County, a motion to vacate his sentence on the following grounds:
1. That petitioner was denied the equal protection of the laws
in that at the time of petitioner's conviction upon his plea of guilty, negroes
were systematically excluded from service on grand and petit juries in Holmes
County, and, specifically, from the grand jury which indicted petitioner.
2. That petitioner was denied the effective assistance of
counsel in that petitioner's "court-appointed" attorney failed to
make proper investigation of the case, failed to confer with petitioner except
for a brief period immediately prior to the entry of the plea of guilty, and
failed to properly advise with petitioner.
3. That petitioner's plea of guilty was not understandingly and
voluntarily entered.
The Circuit Court, after an evidentiary hearing, denied the
motion to vacate by memorandum opinion and found that petitioner did have
adequate assistance of counsel; that his plea of guilty was knowingly,
intelligently and voluntarily entered; and that such a guilty plea waived all
non-jurisdictional defects, including the alleged defect in the selection of
the grand jury. Petitioner appealed to the Supreme Court of Mississippi, which
affirmed the decision of the Circuit Court. Winters v. State,
244 So. 2d 1 (Miss.1971)
Being dissatisfied with the results obtained in the state court
proceedings, petitioner has filed in this court his petition for a writ of
habeas corpus under 28 U.S.C. § 2241 et seq. Petitioner was granted leave to
proceed in forma pauperis, and a show cause order issued to respondent.
Written briefs have been filed by both parties, and the parties have, by
stipulation, waived evidentiary hearing and submitted the cause on the
pleadings, briefs and the record made in the state court. It is admitted by
respondent that petitioner has exhausted his state remedies within the meaning
of 28 U.S.C. § 2254.
Petitioner is represented here by the same counsel who
represented him in the state court post-conviction proceedings, but not the
same counsel who represented him at the time of, and prior to, the entry of his
guilty plea and his subsequent sentencing thereon. Petitioner's contentions
here are essentially the same as those presented in the post-conviction
proceedings in the state court. Respondent contends that petitioner's plea of
guilty was understandingly and voluntarily entered upon advice of competent
counsel and that petitioner thereby waived any defect in the composition of the
grand jury.
FINDINGS OF FACT
On April 14, 1963, one E. T. Branch, an adult white male, was
killed at a place of business, described as a "beer joint", operated
by him in Holmes County. Shortly, thereafter, petitioner, a negro male, was
arrested and charged with the murder of Branch. At that time, petitioner was 18
years of age and had left school in the fifth grade. He last attended school at
age eleven, and had worked for a veterinarian at Kosciusko since that time.
Although lacking in formal education, petitioner was intelligent and capable of
normal understanding. Prior to his arrest on the murder charge, he had had two
brushes with the law—a charge of driving while intoxicated in 1963 for which he
paid a fine, and a charge of disturbing the peace, the outcome of which is not
clear, but as a result of which, petitioner spent about six hours in jail. He
had never been in a courtroom before April of 1963.
On April 18, 1963, the grand jury of Holmes County, returned an
indictment against petitioner for the murder of Branch. On April 19, 1963,
petitioner was arraigned before the Circuit Court of Holmes County, and entered
a plea of not guilty to the charge of murder. A period of only five days
elapsed between the killing of Branch and the arraignment of petitioner on the
murder charge. At some unspecified point during that five-day period,
members of petitioner's family employed David E. Crawley, Jr., a practicing
member of the Mississippi State Bar since 1942, as petitioner's attorney. Mr.
Crawley is white. Mr. Crawley engaged in the general civil and criminal
practice of law at Kosciusko, from 1942 until 1953, at which time he began to
limit his practice, more or less, to the handling of personal injury and
workmen's compensation matters on behalf of plaintiffs. During his career at
the bar, Mr. Crawley had handled between 25 and 75 murder cases and 15 to 20
other capital cases. He estimated that he had handled a total of between 150
and 200 criminal matters of all types at the time of the habeas corpus hearing
in state court. Mr. Crawley had represented the Winters family on other
occasions and considered them to be among his best clients. He estimated that
his clientele in criminal matters consisted of approximately 25% whites and 75%
negroes. At the time he accepted employment as petitioner's defense counsel,
Mr. Crawley was aware of the defenses available in a criminal proceeding,
including the right of petitioner to challenge the racial composition of the
grand jury which indicted him. He had never filed such a challenge himself, but
knew of one case in which a white attorney had challenged the composition of a
jury on racial grounds in Kosciusko, without adverse social or economic
effects.
After being employed by petitioner's family and before
petitioner's arraignment in the Circuit Court, Mr. Crawley conferred with
petitioner in the Holmes County Jail at Lexington, and was given the following
version of events leading up to, and including, the death of Branch:
Petitioner and a
friend were at the beer joint operated by Branch. Branch was present, as were
others, including at least one employee of Branch and certain unidentified
members of petitioner's family. Petitioner began talking to a negro female
employee, to which Branch apparently objected. Without warning, Branch slapped petitioner
"rather severely across the side of the head." At this, petitioner
became "enraged and infuriated," left the premises of Branch, got in
his automobile and went with his friend to the friend's house, a distance of
some 20 miles from Branch's establishment, for the purpose of obtaining a gun.
A shotgun and shells were obtained at the friend's house, and petitioner and
his friend then returned to Branch's place of business. A total distance of
approximately 40 miles had been traveled from the beer joint to the friend's
house and back. Upon his return to the Branch establishment, petitioner went
inside, told the members of his family present to leave and get in the car,
that he had "a little business to attend to," and after the members of
petitioner's family had left the establishment, stuck the shotgun through a
window or door and fired at Branch, killing him.
After hearing this
story from petitioner, Mr. Crawley continued his investigation of the case by
interviewing members of petitioner’s family to determine whether or not
petitioner had told them the same story. He found this to be the case. He
talked to no witnesses outside of petitioner's family.
Feeling that the only possible defense to the charge of murder
was insanity, Mr. Crawley filed a motion for a mental examination of
petitioner, pursuant to which the Circuit Court ordered petitioner transported
to Mississippi State Hospital at Whitfield for mental examination on April 23,
1963. This necessitated a continuance of the case to the October, 1963 term of
the court. Petitioner remained at the Mississippi State Hospital for about six
weeks and upon completion of the examination was returned to the Holmes County
Jail. The psychiatric report based upon the examination was entirely negative
insofar as a defense to the charge of murder was concerned. Following receipt
of the report on the mental examination of petitioner, Mr. Crawley discussed
petitioner's case with Mr. Pat Barrett, county attorney of Holmes County, and,
after the commencement of the October, 1963 term of the court, with Mr. George
Everitt, the district attorney. In the course of those discussions he learned
that the testimony of the state's witnesses as to the facts surrounding the
death of Branch would be substantially the same as the version given to him by
petitioner and by petitioner's family. Mr. Crawley then concluded that there
was a high degree of probability that petitioner would be convicted of murder
and would be given the death penalty. He also learned that members of the
Branch family were exerting pressure upon the authorities to insist upon the
death penalty for petitioner. Although Mr. Crawley was aware of petitioner's
right to attack the exclusion of negroes from the grand jury which indicted him
and from the petit jury impaneled for the October term of the Circuit Court of
Holmes County, he nevertheless felt that the facts of petitioner's case were
such that no jury, regardless of how constituted, could fail to convict
petitioner of the murder of Branch.
He was extremely concerned that petitioner might receive the
death penalty.
At that point, the saving of petitioner's life was uppermost in
Mr. Crawley's mind. Pursuant to that line of thinking, he embarked upon the
process of plea bargaining with the state's attorneys in an effort to obtain an
agreement to recommend a sentence of life imprisonment in return for petitioner's
plea of guilty. In the plea bargaining process, Mr. Crawley advised the state's
attorneys that should he be forced to trial of petitioner's case, he would file
a motion to quash the indictment on the ground of the systematic exclusion of
negroes from service on the grand jury which indicted petitioner, and in the
event that motion were overruled, he would immediately challenge the
composition of the petit jury on the same ground. As a result of the plea
bargaining process, the state agreed to recommend a life sentence in return for
a guilty plea by petitioner.
Mr. Crawley had kept petitioner's family advised of his efforts
to persuade the state to accept a guilty plea in return for recommendation of a
life sentence for petitioner. He did not advise petitioner's family of
petitioner's right to challenge the racial composition of the juries. On
October 21, 1963, Mr. Crawley conferred with petitioner in a witness room
adjacent to the courtroom in the Holmes County Courthouse. Mr. Crawley advised
petitioner that the testimony of the witnesses would be adverse to petitioner
and that it was Mr. Crawley's opinion that if petitioner went to trial, he
would probably be convicted and sentenced to death. Mr. Crawley further
explained to petitioner that if he entered a plea of guilty he would receive
1039*1039 a life sentence and explained that petitioner would be eligible for
parole after serving ten years of that sentence. At no time did Mr. Crawley
advise petitioner that he had a right to challenge the racial composition of
either the grand jury or the petit jury. Despite his awareness of petitioner's
right to challenge the composition of the juries, Mr. Crawley felt that the
preservation of petitioner's life was of greater importance than the
vindication of that particular constitutional right. On the basis of his
attorney's advice, petitioner decided to change his plea to "guilty."
On the same day, petitioner and his attorney appeared before the
Circuit Judge, and petitioner then and there changed his plea from "not
guilty" to "guilty" of the murder of Branch. Before accepting
petitioner's change of plea the Circuit Judge questioned him at some length in
open court. Present at the time in addition to the judge were petitioner, Mr.
Crawley, Mr. Barrett, the county attorney, and Mr. Everitt, the district
attorney. The court advised petitioner that he had a right to a trial by jury
and that his plea of guilty would result in a waiver of that right. Petitioner
indicated to the court that he understood this to be the case. The court
further questioned petitioner as to whether his change of plea was induced by
force, coercion or fear, to which petitioner responded that it was not. The
court also inquired of petitioner if any inducement or promise of reward had
been offered him in return for a plea of guilty, and petitioner replied that no
such promise had been made to him. Petitioner was also asked by the court if he
was entering a plea of guilty freely and voluntarily and because he was guilty
of the crime charged and for no other reason. Petitioner responded in the
affirmative. The court then inquired whether or not petitioner's attorney had
advised petitioner of his rights and whether or not petitioner had any
complaint or criticism concerning the services of his attorney. Petitioner
replied that he had been advised of his rights by his attorney and that he had
no complaint concerning his services. In the opinion of Mr. Crawley and Mr.
Everitt, the responses of petitioner to the questions of the court were
intelligent and responsive and clearly indicated that petitioner understood the
questions, none of which petitioner undertook to deny in his testimony on the motion to vacate. This court therefore finds that petitioner did
understand what was being said to him by the state court and the questions
asked him by that court prior to the acceptance of his guilty plea and further
finds that his responses thereto were intelligent and responsive.
Upon completion of the questioning of petitioner by the court,
the court accepted his change of plea to "guilty", and on October 24,
1963, petitioner was sentenced to life imprisonment for the murder of Branch.
At no time did either petitioner's attorney or the state court advise
petitioner of his right to challenge the racial composition of either the grand
or petit juries, and petitioner was not aware of that right.
CONCLUSIONS OF LAW
I. EFFECTIVE
ASSISTANCE OF COUNSEL
Petitioner's present criticism of his attorney and his
characterization of the assistance rendered him by his attorney as
"ineffective" are based upon Mr. Crawley's failure to advise him of
his constitutional right to object to the systematic exclusion of negroes from
jury service in Holmes County, Mississippi, and upon the alleged failure of Mr.
Crawley to devote the necessary time, energy and interest to petitioner's
defense.
The second criticism of Mr. Crawley's services is clearly not
founded in fact. He interviewed petitioner at the Holmes County Jail promptly
upon being employed and prior to the arraignment. This could not have been more
than five days after the employment, and was probably less. After interviewing
petitioner, Mr. Crawley promptly undertook such investigation as in his
judgment was required. He then sought a mental examination of petitioner in
order to determine whether or not the defense of insanity would be available.
He conferred not only with petitioner, but with members of his family and with
the state's attorneys on numerous occasions. He was fully aware of all of
petitioner's rights, but was also aware of the almost overwhelming evidence
against petitioner. His devotion to petitioner's cause is amply demonstrated by
the evidence.
Despite Mr. Crawley's devotion to and interest in petitioner's
defense, did his failure to interview all available witnesses and his failure
to advise petitioner of his constitutional right to object to racial
discrimination in the jury selection process in Holmes County deprive
petitioner of the effective assistance of counsel? The facts surrounding the
death of Branch as related to Mr. Crawley by petitioner presented a clear case
of murder under Mississippi law. Mr. Crawley's
conferences with members of petitioner's family confirmed that petitioner had
given his family the same version of the facts. It should also be remembered
that certain unidentified members of petitioner's family were present at the
scene of the killing. It is not unreasonable to assume that those members of
petitioner's family told what they knew either to Mr. Crawley or to the other
members of the family. It is significant that Mr. Crawley's interviews with the
family produced no conflicts with the version of the facts related to Mr.
Crawley by petitioner. Mr. Crawley's conversations with the state's attorneys
further confirmed petitioner's version of the facts. There is nothing before
this court to indicate that even if Mr. Crawley had interviewed other witnesses
he would have learned anything different from what he was told by petitioner,
petitioner's family and the state's attorneys. It is possible, indeed likely,
that some attorneys in the same circumstance might have interviewed other witnesses.
However, in the absence of a showing that Mr. Crawley's failure to interview
such witnesses resulted in his being unaware of available evidence which could
have been used to the benefit of petitioner, the court is of the opinion that
such failure did not 1041*1041 render Mr. Crawley's assistance to petitioner
ineffective.
Insofar as Mr. Crawley's failure to advise petitioner of his
right to object to the systematic exclusion of negroes from jury service in
Holmes County is concerned, the court is of the opinion that this, too, is an
area in which equally competent counsel might have elected to proceed
differently. In Mr. Crawley's judgment, however, the case against petitioner
was so clear that the racial composition of the jury would have made no difference
in whether an indictment or a guilty verdict were returned. He felt an
overriding obligation to attempt to save petitioner's life, which he set out to
do, and which he accomplished. Under those circumstances it cannot be said that
Mr. Crawley's assistance to petitioner was rendered ineffective merely because
he failed to advise petitioner of the existence of a constitutional right, the
exercise of which Mr. Crawley honestly believed would be of no ultimate benefit
to petitioner.
The test of whether or not the assistance of counsel to a
defendant in a criminal proceeding has been "effective", within the
meaning of the constitution, is not whether or not the advice was correct, or
whether or not other attorneys in the same circumstances might have proceeded
differently. The test is whether or not the advice or other actions of the
attorney were within the range of competence demanded of attorneys in criminal
cases. McMann v.
Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Parker v. North
Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). Edwards v. United
States, 103 U.S.App.D.C. 152, 256 F.2d 707 (1958), cert. den. 358 U.S. 847, 90
S.Ct. 74, 3 L.Ed.2d 82. In the Fifth Circuit, effective counsel does not mean
"errorless counsel" or "counsel judged ineffective by
hindsight" but counsel "reasonably likely to render and rendering
reasonably effective assistance." McKenna v. Ellis,
280 F.2d 592 (5 Cir. 1960), cert. den. 368 U.S. 877, 82
S.Ct. 121, 7 L.Ed.2d 78 (1961). Also, more is required of an
attorney where the plea is not guilty and the case goes to trial than in the
case of a guilty plea. Lamb v. Beto, 423
F.2d 85 (5 Cir. 1970). Since the actions of Mr. Crawley on behalf of petitioner and
his advice to petitioner were well within the range of competence required,
petitioner was not deprived of the effective assistance of counsel.
II. SYSTEMATIC
EXCLUSION OF NEGROES FROM JURY SERVICE
For purposes of this opinion it will be assumed, without deciding,
that negroes were systematically excluded from the grand jury which indicted
petitioner and from the petit jury panel drawn for the October, 1963 term of
the Circuit Court of Holmes County. It is alleged by petitioner, although
denied by respondent, that according to the 1960 decennial census, there were
in Holmes County, 2,218 white males and 3,913 nonwhite males eligible to serve
as jurors. It is further alleged that approximately 99% of the non-whites were
negroes. Thus, it is alleged, approximately 70% of the jury qualified males in
the County were negroes, and that at the time of the indictment and sentencing
of petitioner few, if any, negroes had ever been called for jury service. No
proof was offered on this point in the state court proceedings, the trial judge
limiting the state court hearing to the questions of effectiveness of counsel,
waiver and the voluntariness of the guilty plea on the ground that it would be
premature to consider the racial exclusion question unless one of the other issues
were resolved in petitioner's favor. If proof had been taken on the racial
exclusion question and if petitioner's proof thereon had been substantially as
alleged in his petition here, such proof would have been sufficient to make out
a prima facie case of systematic exclusion of negroes from jury service
in Holmes County. United States ex
rel Goldsby v. Harpole, 263 F.2d 71 (5 Cir. 1958), cert. den. 361 U.S. 838, 80
S.Ct. 58, 4 L.Ed.2d 78.
If petitioner's plea of guilty was understandingly and
voluntarily entered he waived his right to object to the composition of the
juries, and the petition must be denied. The court is thus lead to
consideration of the third, and most critical, point raised by petitioner.
III. VALIDITY OF
THE GUILTY PLEA
Petitioner contends that his plea of guilty was not understandingly
and voluntarily entered because he was never advised, and did not otherwise
know, that he had a right to object to the systematic exclusion of negroes from
the grand jury which indicted him and from the petit jury which would have
tried him had he gone to trial at the October, 1963 term of the Circuit Court
of Holmes County. Petitioner raises no other substantial question as to the
validity of his guilty plea.[6]
To support his position petitioner relies primarily upon Johnson v. Zerbst,
304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937); Fay v. Noia, 372
U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); and Ellzey v.
Breazeale, 277 F.Supp. 948 (S.D.Miss.1967). Petitioner argues that since waiver
is defined in Johnson v. Zerbst, supra, as "an
intentional relinquishment or abandonment of a known right or privilege,"
which has recently been restated in Fay v. Noia, supra, as "the
considered choice of the petitioner," and since it is undisputed that
petitioner himself had no knowledge of his constitutional right to object to
the systematic exclusion of negroes from jury service in Holmes County, there
was no intentional relinquishment or abandonment of a known right or privilege
and no considered choice of petitioner and, therefore, no waiver. Petitioner
further argues that since he did not knowingly and intentionally waive his
right to object to the exclusion from jury service of negroes, his plea of
guilty was not understandingly and voluntarily entered, since such a plea would
constitute a waiver of such right, and he cannot be held to have waived a
constitutional right, the existence of which was unknown to him.
The argument of petitioner ignores the fundamental difference
between the waiver resulting from a voluntary and understanding plea of guilty
and the type of waiver dealt with in Johnson v. Zerbst, Fay v. Noia, and the other
cases cited by petitioner (with the exception of Ellzey v.
Breazeale, supra, and other cases which will be discussed later), in each
of which the defendant plead not guilty and was convicted after a trial on the
merits. The well-established rule that a guilty plea knowingly and voluntarily
entered waives all non-jurisdictional defects is not merely another rule of
waiver. It is the natural consequence and flows from the fundamental nature of
the guilty plea. A plea of guilty by a defendant in a criminal proceeding says
to the court that the defendant has committed the offense with which he is
charged and that he is willing to forego a trial and accept punishment.
Assuming the jurisdiction of the court and the representation of the defendant
by competent counsel, once the court has satisfied itself that the plea is
understandingly and voluntarily entered, it is not required, before accepting
the plea, to determine that the defendant was personally aware of each and
every right which, had he gone to trial, might have been available to him under
the constitution. It would unduly expand the presumption against waivers of
fundamental rights to hold that, despite the availability of competent counsel,
a defendant must himself be aware of, and agree to forego, each and every right
which may be available to him under the constitution in order that his guilty
plea be valid. The constitution requires that counsel be available to
defendants in criminal prosecutions for the very reason that the learning,
experience and independent judgment of counsel is the best guarantee of the
protection of the rights of an accused. This court cannot accept the
proposition that a guilty plea, otherwise valid, may be successfully attacked
on the ground that the defendant did not have personal knowledge of all
constitutional rights available to him and did not personally make the decision
not to avail himself of them. All defendants in criminal prosecutions are, to a
greater or lesser degree, ignorant of their constitutional rights. That is why
lawyers are made available to them. But lawyers are not required to educate
their clients in constitutional law. They are expected to utilize their
training, experience and judgment in acting for and advising their clients who
do not possess, and cannot be expected to acquire, the lawyer's training,
experience and professional judgment. Petitioner was guaranteed many rights by
the constitution in addition to his right to have his case presented to a grand
jury from which negroes had not been systematically excluded. If petitioner had
elected to go to trial, he had the right to be present in the courtroom and
confront the witnesses against him; the right to cross-examination of the
prosecution witnesses; the right to testify in his own behalf or to remain
silent, as he saw fit; the right to appear in the courtroom free from
restraints such as handcuffs or manacles; the right not to be required to
appear in the courtroom before the jury in prison garb, and many others. It is
probably safe to say that petitioner knew of none of those rights at the time
of his guilty plea, and there was no reason for him to know of them. He had decided,
upon advice of competent counsel and for reasons of his own, to forego a trial.
He knew he had the right to demand a trial, but decided, on advice of counsel,
not to do so. Therefore, the rights which petitioner might have exercised had a
trial occurred became immaterial and were therefore waived by the guilty plea.
This includes the right to challenge the racial composition of the juries.
Vastly different, of course, is the case in which the defendant
does not plead guilty, but instead goes to trial protesting his innocence of
the charge and striving for acquittal. In such a case, as the Supreme Court
noted in Johnson v. Zerbst, the courts
indulge every presumption against waiver of fundamental rights. This is so
because it would be contrary to logic and the teaching of human experience not
to presume that a defendant insisting upon his innocence and forcing the
prosecution to prove its case in an adversary proceeding—a trial on the
merits—intends to avail himself of every available right, unless there exists a
clear indication that the defendant has intentionally waived such rights. Even
in such cases, the principle is subject to limitations. See United States ex
rel Goldsby v. Harpole, supra.
The waiver of non-jurisdictional defects flowing from a plea of
guilty is effective only if the guilty plea is understandingly and voluntarily
entered. The requirement that the plea must be voluntary is easily understood.
It means that the plea must have been entered as the free and rational choice
of the accused and not as the result of threats, coercion or promise of reward.
The requirement that the plea must be understandingly entered does not mean
that the accused must understand the nature of each and every constitutional right
which might be available to him upon a trial, but means that the accused must
understand the nature of the charge against him, that he has a right to a trial
if he wishes, and the consequences of his plea of guilty. North Carolina v.
Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). This is the
standard for accepting a guilty plea in the federal district court. Rule 11,
FRCrP. Here it is clear that the petitioner understood that he was charged with
murder, that he had the right to a trial which might result in his being
sentenced to 1044*1044 suffer the death penalty, and understood that the
consequences of his plea of guilty would be his conviction without trial and
his sentence to life imprisonment in the penitentiary.
The arguments made here by petitioner were dealt with and
disposed of by the Court of Appeals for the District of Columbia Circuit in Edwards v. United
States, supra, in an opinion written by then Circuit Judge Warren
Burger. That opinion is made especially persuasive by the fact that the writer
now serves as Chief Justice of the Supreme Court of the United States. In Edwards,
the court had this to say:
"It must be realized that this
is not a case in which proof of guilt depended upon a trial. In such cases, the
accused usually relies to a great extent on counsel to conduct an effective
defense, because the accused does not know enough of the law to do so himself.
While the accused may have to take the consequences of a poor defense, he may
at least say the fault was not his own. But this is not so when he pleads
guilty. Here the deed is his own; here there are not the baffling complexities
which require a lawyer for illumination; if voluntarily and understandingly
made, even a layman should expect a plea of guilty to be treated as an honest
confession of guilt and a waiver of all defenses known and unknown. And such is
the law. A plea of guilty may not be withdrawn after sentence except to correct
a `manifest injustice,' and we find it difficult to imagine how `manifest
injustice' could be shown except by proof that the plea was not voluntarily or
understandingly made, or a showing that defendant was ignorant of his right to
counsel. Certainly ineffective assistance of counsel, as opposed to ignorance of
the right to counsel, is immaterial in an attempt to impeach a plea of guilty,
except perhaps to the extent that it bears on the issues of voluntariness and
understanding.
There seems to be little doubt that
the plea of guilty was in the present case voluntary. There is no allegation
that appellant was induced to plead guilty by any conduct of the police,
prosecutor or court, but only that his own counsel's `bad' advice induced him
to plead guilty. This, however, does not itself make out involuntariness. It
seems likewise clear that the plea was understandingly made. It may be argued
that a plea of guilty is not understandingly made when defendant is unaware of
certain technical defenses which might very well make the prosecutor's job more
difficult or even impossible were he put to his proof. However, we think
`understandingly' refers merely to the meaning of the charge, and what
acts amount to being guilty of the charge, and the consequences
of pleading guilty thereto, rather than to dilatory or evidentiary defenses. A
refusal years after sentencing to give effect to the latter could scarcely be
deemed `manifest injustice' within the meaning of Rule 32(d). Appellant does
not try to say he did not do the act charged. He pleads only that, unknown to
him, he might have been able to suppress the truth as to certain
evidence of his crime, and thus, perhaps defeat justice. He cannot be heard to
this end after a voluntary, knowing plea of guilty." 256 F. 2d, at pp.
709-710.
The Supreme Court in a series of recent decisions has rejected
attacks upon the validity of guilty pleas on various grounds, none of which
were precisely the same as the grounds relied upon by petitioner here. However,
those decisions when considered together unmistakably indicate that the Supreme
Court has considerably more respect for the finality of a plea of guilty than
the adoption of petitioner's arguments would permit.
In McMann v.
Richardson, supra, the Supreme Court denied habeas corpus relief to a state
prisoner who had entered a plea of guilty to a charge of robbery upon advice of
counsel, holding that the fact that a confession had been coerced from the
defendant does not, without more, entitle him to have his conviction upon a
plea of guilty set aside. In Parker v. North
Carolina, supra, a state prisoner also sought to collaterally attack the
validity of his plea of guilty on the ground that a confession had been coerced
from him, and the Supreme Court denied relief even though it was established
that the defendant's decision to plead guilty was based upon the incorrect
opinion of his attorney that the confession would be admissible upon trial. The
petitioner in that case also raised the question of the validity of the
indictment because of systematic exclusion of members of his race from the
grand jury which indicted him. The state court refused to consider that claim
because the objection was not raised prior to the guilty plea and was thus
waived under state law. The Supreme Court was of the opinion that this state
rule of practice constituted an adequate state ground for denial of relief on
the racial exclusion issue, precluding consideration of that issue by the
Supreme Court. It does not appear from the report of the decision whether or
not the defendant himself knew of his right to challenge the composition of the
grand jury. In Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court
held that a plea of guilty induced by the defendant's fear of a possible death
penalty in the event of trial was not thereby rendered involuntary. In North Carolina v.
Alford, supra, the Supreme Court reached the same result and affirmed
the validity of the plea of guilty even though the defendant, after pleading
guilty, stated that he had not actually committed the offense with which he was
charged, but was pleading guilty on the advice of his attorney in order to
avoid the possibility of the death penalty.
Ellzey v.
Breazeale, supra, decided by the United States District Court for the
Southern District of Mississippi, is the only reported decision of any court
cited by petitioner which supports his position. Despite the high regard of
this court for the decisions of its brothers in the Southern District, it is
unable to agree with the result reached in that case for reasons already
mentioned. Ellzey's principal reliance was upon four well-known Fifth
Circuit decisions which dealt with the jury exclusion issue, and held there was
no waiver of the right to attack the jury system in a common setting of a not
guilty plea, trial and conviction of a negro defendant, as distinguished from a
plea of guilty.
In addition, when Ellzey was decided, the court did not
have the benefit of the decisions of the Supreme Court in Richardson,
Parker, Brady, and Alford cases. Those decisions, as pointed out by
the Court of Appeals for the Fifth Circuit in Colson v. Smith,
438 F.2d 1075 (5 Cir. 1971), substantially clarify a heretofore
somewhat murky area of the law in the matter of how far habeas corpus petitioners
may go in questioning the validity of a guilty plea upon collateral attack. It
appears that they may not go so far as petitioner contends.
The rights guaranteed by the constitution stand as the guardians
of individual liberty against the encroachments of tyranny and oppression.
However, as the Supreme Court says in North Carolina v.
Alford, supra:
"The prohibitions against
involuntary or unintelligent pleas should not be relaxed, but neither should an
exercise in arid logic render those constitutional guarantees counterproductive
and put in jeopardy the very human values they were meant to preserve." 91 S.Ct., at p. 168.
Life is among the paramount human values. Petitioner chose to
guarantee the preservation of his life by entering his plea of guilty. The
court is of the opinion that petitioner's plea of guilty was understandingly
and voluntarily made, and an order denying the petition will therefore be
entered.
[1] The pertinent
portions of the opinion of the Circuit Court of Holmes County are quoted at
length in the opinion of the Supreme Court of Mississippi. 244 So.2d, at page
2.
[2] Petitioner
testified that the County Sheriff and a deputy coerced him into signing a
confession on the day of his arrest by beating him until he agreed to confess.
He further testified that he attempted to tell his attorney about the beating
and resulting confession, but his attorney would not take time to talk with him
and refused to listen to anything concerning the alleged beating or confession.
Crawley emphatically denied that petitioner ever made any attempts to tell him
about a beating or a confession and denied that he had ever received any
information concerning such an incident. Although Crawley interviewed
petitioner at the Holmes County Jail less than five days after the arrest of
petitioner, he saw no signs of a beating. No statement of petitioner purporting
to be a confession was ever used against him, and his plea of guilty was entered
approximately six months after the alleged coercion occurred. Under the
circumstances, even if a confession was coerced from petitioner it would not
have rendered petitioner's guilty plea invalid. McMann v.
Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North
Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).
[3] Mr. Crawley was
aware that Branch had a rather poor reputation, but felt that the probability
of obtaining an acquittal for petitioner on that basis was too remote to risk a
trial.
[4] An apt
illustration of Mr. Crawley's view of his duties and responsibilities as
petitioner's defense counsel is the following excerpt from the cross-examination
of Mr. Crawley by petitioner's attorney in the evidentiary hearing held on the
motion to vacate sentence in the Circuit Court of Holmes County:
"Q You did not file a motion to quash the indictment prior
to arraignment?
A No, I did not.
Q Did it occur to you that under Mississippi law, you might have
waived the defendant's right to object on the ground of systematic exclusion of
negroes as jurors?
A I was aware that any motion must be filed before arraignment.
I was also aware that in view of the seriousness of the constitutional
questions that could be raised, that it would be reversible error for the court
to overrule the motion, probably. `Mr. Fitzgerald', the supreme thing in my
mind at the time was saving this man's life. I felt then and now that I must do
and did do at that time all I could to save this man from the death penalty.
Q Were you concerned with whether or not you were making the
decisions your client would have made?
A Well, insofar as making decisions are concerned, I accepted
the responsibility of this man's destiny when I accepted employment. I was
representing him to the best of my ability, and I cannot say I would have
allowed him to make any decision which I felt would put his life in jeopardy.
Before I could do that, I would have asked the court to allow me to withdraw, I
could not knowingly allow him to make a decision which would put his life in
jeopardy.
Q But, it went a little deeper than that because you did not
inform him of what his rights were, did you, as to the composition of the jury?
A Insofar as his constitutional rights with regard to the
composition of the Grand and Petit Juries, I did not discuss that with him, as
I say, I was more concerned with saving this man's life than anything
else."
[5] § 2215,
Mississippi Code (1942).
[6] See footnote 2, supra.
[7] Compare with the
provisions of §§ 2449 and 2450, Mississippi Code (1942). Neither the Circuit
Court of Holmes County, nor the Supreme Court of Mississippi based their denial
of relief upon these statutes, however.
[9] In Ellzey,
counsel was court-appointed and not privately retained as here. Also, following
Ellzey's plea of guilty, a trial jury was impaneled and instructed to bring in
a verdict of guilty, resulting in a sentence of life imprisonment. These
factual differences seem superficial and would not render Ellzey
distinguishable. Judge Russell was persuaded that "the fact that Ellzey
pled guilty under the circumstances stated above [where his court-appointed
counsel did not inform the defendant of his right to challenge the grand jury
and special venire on the ground that negroes had been systematically excluded
therefrom] was not an effective waiver. His right to object to the grand
jury and the special venire from which his trial jury was drawn, remains.
Had he known of this right it may or may not have affected his plea."
(Emphasis supplied) 277 F.Supp., at pp.
951-952.
Judge Russell adhered to Ellzey in his unreported
opinion, Windom v. Cook (S. D.Miss. Dec. 5, 1968), upon finding that Windom's
pleas of guilty were "freely and voluntarily given in open court and after
consultation with effective counsel," and he granted the writ because the
record was silent as to whether Windom had been advised by his attorney of his
right to object to the exclusion of negroes from the grand jury. While
affirming in a per curiam opinion, Windom v. Cook, 423
F.2d 721 (1970), the Fifth Circuit rejected the district court's finding that
Windom's pleas of guilty had been entered with the benefit of effective counsel
but held instead that on the facts presented Windom did not have effective
counsel, stating: "Counsel was not in a position to advise Windom prior to
allowing him to plead guilty because he was unfamiliar with the case." The
appellate opinion emphasized that the failure of counsel to advise an accused
of his right to challenge the racial composition of the grand jury is but one
element among other factors present which may be considered in determining
whether there was effective representation of counsel. We do not understand the
case to hold that such failure to advise, standing alone, overrides diligent
efforts of counsel and vitiates a plea of guilty otherwise freely and
voluntarily made.
[10] Petitioner's
strong reliance upon the district court's opinion in Colson v. Smith,
315 F.Supp. 179 (N.D.Ga.1970), is misplaced. There Judge Edenfield
held on the facts that counsel, by giving the case only perfunctory attention,
did not provide effective assistance, although Colson was maintaining his
innocence until entering a guilty plea. We decline to follow Judge Edenfield's
intimation, which petitioner here seizes upon, that even though Colson's plea
of guilty may have been free and voluntary, his conviction nevertheless could
not stand if the indicting grand jury was, in fact, unconstitutionally
structured as a defect of such nature was of jurisdictional proportion
which could not be waived except by intentional failure "to exercise his
right to be indicted by a fair and impartial jury." The latter view was
firmly rejected by the Fifth Circuit when Judge Thornberry wrote as follows:
Although Judge Edenfield's decision was affirmed, it was on the
basis of factual findings that petitioner's guilty plea under the circumstances
was "the product of ineffective assistance of counsel", which was a
credibility decision not to be disturbed except on a showing of clear error.
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