Copyright © Janice Tracy, Mississippi Memories

Tuesday, December 31, 2013

Happy New Year.....Ring Those Bells!

Have you ever thought about the significance of something as simple as a bell?

Not only were church bells of old used to announce the time of day to anyone within hearing distance, bells in general have been used since the earliest of times as a type of alarm, warning those nearby of things that were about to happen, things that were both "good" and some things that were "not so good." While bells have long been included in religious celebrations, the tolling of a bell may also serve as an announcement that a child has been born, a couple has been married, or to inform a community that a death has occurred.

During medieval times, the simple ringing of a bell was believed to have kept evil spirits away, and it was a common practice to ring a bell at the bedside of the deceased prior to burial. In modern times, bells of all types, sizes, and sounds are commonly used in our homes, schools, and other public places. Even our doorbells and the bell that ding-dings when we fail to buckle our seat belts have evolved from the early uses of bells as warning or announcement devices.

Today, bells continue to be a part of the simplest of our holiday traditions, both religious and secular. But neither Christmas nor a New Year celebration would be the same without bells.

Friday, December 27, 2013

Sharing and Preserving Family History At Christmas

Christmas gatherings are perfect times to discuss and to preserve one's family history. After the more traditional activities of attending church, opening gifts, and eating a holiday dinner are over, sharing stories about family history is a perfect way to get older relatives to talk about what it was like when they were growing up. Talking about old or special Christmas ornaments on the tree, and remembering unusual or funny events that occurred during past Christmases may be ways to start a dialogue. My own family engaged in some "family story sharing" over the Christmas holidays, and a new cousin I met just last week and I shared our stories yesterday over the phone. Taking photos of family members gathered for the holiday is another fantastic way to preserve the memory of those who are close to us. We are extremely blessed to have a daughter who is a very talented photographer, so our family gathering was well-documented with photos of all of us, including the cat! And this year, for the first time ever, I gave someone a DNA test kit for Christmas. In my case, the gift went to a very close friend who is attempting to unravel her maternal family's history. Since genetic DNA testing has become an extremely valuable tool for adding more branches to the family tree, I imagine others like me gave test kits for gifts this Christmas, as well. Overall, ours was a very good Christmas, one filled with memories that will live on. I hope you made some special memories this Christmas, too. And along the way, I hope we all preserved a little family history.

Monday, December 16, 2013

Christmas Traditions

This post was initially written for the Carnival of Genealogy, 61st Edition, and first published here on December 1, 2008.  

Our Christmas-related activities, "after children" were many and varied over the years. They changed somewhat every few years because of the children's ages and where we lived at the time. But the ones I call "traditions" were started when our family was young, and they never changed. Some were influenced by our own upbringings, but the ones that meant the most actually started when the first child was born.

One of the things we always did was to put up a "real" tree, usually a Frazier fir. As we moved, the height of ceilings in our houses changed. And when we finally landed in Texas in 1985 and built a house that had a family room with a very high ceiling, we began purchasing a taller tree, usually something that was about 10-12 feet in height. It became a family event to select the "special" tree from one of the many Christmas tree lots that lined the major streets leading to our surburban neighborhood. But it was a "parent" event to get the large tree home on the top of our vehicle and inside the house when we arrived.

Placing the lights on the tree in the early years was always an "adult" task, too. And as soon as the lights were in place, the children began clamoring about who would be "next" to climb the ladder to hang their special ornaments on the tree. When the tree was all decorated and the lights turned on, we started a fire in the fireplace (whether it was cold outside or not!) and sipped on hot chocolate with miniature marshmallows on top, sitting quietly for a few moments to admire in awe the advent of a new Christmas season.

Another tradition involved driving around the week before Christmas to see the Christmas lights in our development and others nearby. In Texas, homeowners' associations take displays of Christmas lights very seriously, and some residents try to outdo their neighbors by having their rooflines, trees, and yard displays decorated by lighting professionals. One of these developments continues its lighting tradition, started about 25 years ago now, with red lights outlining the driveways and walkways that are bright enough to make you think you are nearing the East/West runway of DFW airport! Strategically placed throughout the neighborhood are painted and lighted storyboards that tell in pictures and words the story of "The Night Before Texas, that is..." It was great family fun then and now, and the children, even after they became teenagers, never seemed to tire of reading the story of Santa Claus in his "buckboard" and cowboy boots, making his rounds to deliver gifts to all the children in Texas. Visiting this neighborhood during Christmas season is still a family tradition.

One of my own family traditions growing up in Mississippi was a Christmas Eve gathering of our family which ended with eating fruitcake and drinking egg nog. For the adults in the family, the egg nog may have been laced with rum or with some good old Kentucky bourbon. Don't ask me where they bought the rum or bourbon back then....liquor was illegal in Mississippi until 1966.

But the fruit cake and eggnog tradition was not one that ever took hold in my own family after I had children. They did not like either eggnog or fruitcake. But we simply replaced those holiday items with ones they did enjoy, such as Christmas cookies, lots of Hot Chocolate, and spicy, mulled apple cider, stirred with a cinnamon stick. More often than not, we enjoyed watching a family Christmas movie together, or when the children were younger, we read Christmas stories and listened to Christmas carols, always ending with the always special, "Silent Night." 

Until the children were teenagers, we allowed them to open one gift, and one gift only, to settle some of the anticipation that grew increasingly greater with every day leading up to Christmas morning. Christmas morning always came early in a household where five children had been waiting for weeks for this special day. After they descended on the gifts, we enjoyed a big, homemade breakfast, that usually consisted of French toast, waffles, or pancakes, with Canadian bacon or little smokie sausages, and juice.

Attending Christmas Mass was always a part of our Christmas tradition, but as the children grew older and could stay up longer, instead of attending Mass on Christmas morning, we began going to Midnight Mass, something that became a very special time for all of us. We especially enjoyed the singing of Christmas carols and a performance by the Bell Choir that began thirty minutes before the start of Mass. One of the many memories I have of my children growing up was the first time we attended Midnight Mass, when one of my sons expressed amazement at how few cars were on the streets of our surburban city at 11:30 p.m. I don't think he had ever been up that late in his young life. Little did he know at that moment how many times he and his brothers and their friends would be out at 11:30 p.m. (or later) as teenagers driving on those same streets.

As the children have grown older and some now have families of their own, they have started some of their own special traditions that emulate the ones they remember from childhood. Sometimes, when we are lucky, they include us. But what is important is that family traditions continue to overlap the generations that carry special memories of Christmas when each of us was "growing up."

Friday, December 6, 2013

Does DNA J1 Haplogroup Finding Prove Samuel Porter is Related to Landlot Porter?

It all started when I contacted an individual named Carol Hughes about her post on an message board.  According to the post, Carol and I were researching the same individual, Anastacia Porter Lawson PorterKnown as "Gracy" to family members, Anastacia was the second wife of William Porter, who died in Hinds County, Mississippi in the 1800s. According to most accounts, William Porter was the son of Landlot Porter and Winnie Palmer Porter. More about the Porter family of Hinds County, Mississippi can be read here

Source: Carol Hughes Personal Photo Collection
Gravestone of Landlot Porter
Fortson-Porter Private Cemetery
Hinds County, Mississippi
Shortly before reading Carol's post on the message board, I had read about a small family cemetery near Raymond, Mississippi that allegedly contained the graves of Gracy, her husband, William, his father, Landlot Porter, and other Porter and Fortner family members. I shared this information in an email to Carol, and was struck with amazement when I received her reply telling me that she lived within a few miles of the cemetery's location.  

Although she had no previous knowledge of the cemetery's existence, Carol readily volunteered to locate it and kindly offered to photograph whatever headstones she might find. As most of us know, family obligations, weather, and life in general often take precedence over family research activities, and almost a year went by before Carol was able to make the trip to the cemetery. Although Carol had actually located the cemetery early on, she discovered it was located on private property and she needed permission from the owner. Carol was persistent, and soon her visit to the cemetery, albeit a bittersweet one, was realized. Although the cemetery is located on privately owned property, it has been vandalized and some of the heavier stones and monuments have been toppled.  Gracy Porter's stone was one of those that had been overturned. Landlot Porter's grave marker is still standing, and the photo appearing in this post was included with Carol's permission.

Will I ever know how my great-great-great-grandfather, Samuel Porter, b. circa 1799 in South Carolina, is related to Landlot Porter or to his son, William? I don't know, but I haven't given up searching. I have joined the WorldFamilies Surname Project and I submitted a DNA sample provided by one of the oldest living Porter males in Samuel Porter's lineage to FamilyTree DNA's lab in Houston, Texas. Test results showed the DNA sample submitted by this elderly Porter male matched Y-DNA samples belonging to descendants of John Porter (b. 1690 in Virginia) and to a descendant of Shadrack Porter, one of Landlot's sons by his first wife, Winnie Palmer. The most interesting information about these DNA matches, however, is that each of those tested that matched at the 12 to 37 chromosome range also belong to the J1 Haplogroup (M267), including the Porter male relative I mentioned. 

Now what does that mean? Specifically, the J1 Haplogroup finding means that individuals with this result have ethnic ancestry in many of countries that make up the Arabian Peninsula, as well as some of the countries in Northern Africa. In addition, the majority of academic information about the J1 Haplogroup indicates this finding is indicative of Jewish ancestry, pointing to the "Cohen gene model."  DNA findings can get rather complicated even without involving Haplogroup designations, so I invite you to read more about J1 Haplogroup results here

The J1 Haplogroup finding in my father's ancestry (and mine) does not surprise me. Physical attributes common in my paternal grandmother's Porter family, particularly those of her brothers and her father, were characteristic of Middle Eastern men. Fascinating information.....and it's difficult to believe that it all resulted from just two cheek swabs! 

Will this finding change the direction of my research? Most definitely. Since the Porter family came to Mississippi from several areas in South Carolina, I need to find out more about the family and its collateral lines before they migrated to the Mississippi Territory. Of historical significance is that South Carolina, specifically the cities of Camden and Charleston, had the largest Jewish population in the U. S. in the early 1800s.  You can read more about this segment of our country's history in the Enclyclopedia of Southern Jewish Communities, an online history department located on the Goldring-Woldenburg Institute of Southern Jewish Life website.

So one of my directions for researching Porter family history for the coming year is researching South Carolina history....and who knows what I might find!

Monday, December 2, 2013

DNAme - How My Son is Related to John Adams, Emperor Nicholas II of Russia, and Cheddar Man

Early last summer, I received an email from Dan Manley, who works for a UK-based DNA testing firm, asking me if I would like to receive a free test kit and write about the results of the DNA test on my blog. I agreed to do so, but I explained to Manley that I would like to have a family member tested instead, since I had already been tested by two other companies. With this understanding in place, I chose to have one of my adult sons participate. Surprisingly, my son eagerly submitted the necessary cheek swabs when I received the free test kit. 

DNAme, it seems, is a fairly new company. The following is an excerpt from the company's website:

"Just like footprints on wet sand, the journey of our ancestors to populate the world left trails within us.  These trails are carried in all of our cells and laid within our genes. We offer you a way to analyse your DNA and to find out the journey of your ancestors from Africa, 150,000 years ago, up to the present time...."

Although the company itself is based in the UK, my son's DNA sample was processed in the U.S. in a lab in Virginia. The test kit looked very much like those used by other genetic DNA testing companies. The swabs, shaped like mini-toothbrushes, were sealed inside plastic tubes with what appeared to be "twist-off" tops. These "tops" turned out to be rather difficult to "twist" off, however, and I actually damaged one tube container so much that I used heavy duty tape to re-seal the tube. My son and I were each concerned that this particular sample would be contaminated. So I emailed Manley before we mailed the tubes to the lab and explained what had happened, and he seemed surprised by the apparent difficulty and possible defect. But he assured me the difficulty I encountered opening and resealing the tubes was not an everyday occurrence, and he felt certain the sample should arrive intact at the lab. So we dropped the return kit in the U. S. mail and hoped for the best.

We waited several weeks with no confirmation of receipt by email from the lab or from the company, so I sent an email off to Manley. He quickly responded that the test had indeed reached the lab. It seemed as if it took much longer to receive test results from DNAme than what I anticipated, since the longest period of time I had waited for a previous test with another company (U.S. based) was about four weeks. 

Several weeks after the follow-up email with Manley, I received notification in the mail that DNAme test results were in and were available on the company's website, A small cardboard "ID" type card, containing an access code for viewing the results, was included with the letter. Retrieval of the results was quick and simple, and the website allowed us to download a copy of the report in .pdf format to save for future reference. My son's test results were clear and concise. The document stated his Y-Chromosome markers were analyzed, and his paternal haplotype was identified as R1b. The R1b Haplogroup carries the mutation M343. According to an explanation contained on the first page of the report of findings is this information:

"Haplogroup R is thought to have appeared some 30,000 years ago in Central Asia and is widely spread all over the world. You carry the mutation M343 which is linked to one of the subclades of Haplogroup R called R1b which is thought to have been part of the recolonisation of Europe following the Last Glacial Maximum. The founding member of your tribe is thought to have been born in south west Asia approximately 15,000 - 20,000 years ago. That time was called the Late Glacial Maximum and the climate was very hostile. The whole world was populated by less than 500,000 inhabitants. During this period, Northern Europe was covered with ice and approximely 100 metres below the modern-day one......It has also been suggested that most European male lineages descended from Near Eastern farmers and that maternal lineages descended from hunter-gatherers. This finding suggests that there has been a reproductive advantage for male farmers over hunter-gathers during the Paleolithic to the Neolithic transition period."

My son especially focused in on the next statement:

"You belong to direct descendants of the Cro Magnon people, the modern humans who painted the "Lascaux Cave" in Dordogne in the South of France. These paintings can be regarded both as a testimony of the artistic skills of your ancestors but also as a sketch book of their life during the last glacial age." What is interesting is that he does have some undeveloped artistic we know his skills are contained in his DNA.

At this point in reading the findings of his Y-Chromosome testing, my son was ready for some simply stated results....actually, so was I. So this is the text that followed, although it is still somewhat complex:

"The journey of your ancestors started about 60,000 years ago in Africa close to the Rift Valley region. Following the herds, they migrated toward the north. At that time, the Sahara was not a desert but a hospitable area.  Following a climate shift, they continued moving toward the north-east and left Africa via the Arabian Peninsula. They did not stay there but followed the coastline and finally reached Central Asia. It was some 40,000 years ago that one of your ancestors migrated towards the west of Europe while the rest of the tribe decided to aim towards India and Asia. The climate changed again and glaciers started to cover Europe. Your ancestors met the Neanderthals, but probably due to their communicating and tool building skills had an advantage over them.  With the climate continuing to become harsher, your ancestors looked for refuges in the southern parts of Europe. Following the Late Glacial Maximum and the thawing of the ice, your ancestors populated and dominated the northern parts of Europe. At that time, the English Channel was mostly dry and could be crossed on foot."

Now just what does Haplogroup R1b mean for my son?

The report explains this particular Haplogroup in the following paragraph:

"The R Haplogroup and its subclades, R1a, R1b and R2 are widely spread all over the world. R1b can be found in more than 80% of the population in England, France and Spain. In western Ireland, R1b is found in nearly 100% of the population.  It is also greatly found in the United States and in some parts of Africa like Cameroon. The more we move towards central and eastern Europe the more Haplogroup R1a is represented. R2 is mostly found in India."

In summary, my son's genetic ancestry is:

European (England, France, and Spain)                                    95.40%

American (refers to non-specified Native American ancestry)      3.70%
African                                                                                           0.20%
Asian                                                                                             0.70%   
                                                              Total:                           100.00%                                                                          

DNAme notes on the report the test's accuracy as + or - .5%

One finding reported by DNAme was surprising. It states that his matrilineal DNA Haplogroup is "U." This is an unusual reporting result in most genetic DNA testing of Y-Chromosomes. What I now know is that my son's maternal line, including me, according to the test results, is "part of a very large and old Haplogroup, the U group, which gave rise to a large part of the European population. (The) initial ancestor is thought to have been born in western Asia some 50,000 to 55,000 years ago during the Ice Age, about 15,000 years after modern humans started to spread from Africa. At that time, the first humans had just left their home from where we all originate. (My son's) great-great-grandmother probably came via the Middle East and crossed the Caucasus Mountains to explore new lands....Asia and Europe."

Wow, what a long and rich history we have as a people, always on the move, and it hasn't ended yet......

And yes, my son is related to John Adams, Emperor Nicholas II of Russia, and shares a common ancestor with Cheddar Man, who lived more than 9,000 years ago. According to DNAme, "Cheddar Man" lived more than 9,000 years ago and is regarded as Britain's oldest skeleton. DNA testing, also according to DNAme's report, describes how DNA testing permitted the discovery of two living descendants of the Cheddar Man still living in the town of Somerset, England, close to where his remains were found.  

The story of "Cheddar Man" and where his skeleton was found is quite interesting, especially since my son's paternal ancestry can be traced back to Somerset, England in the 1600's.  

Thanks, Dan Manley, for the free test kit, with the only obligation that I write about the results!

Tuesday, November 12, 2013

Ancestry DNA Results - New and Improved

Wow! My DNA results at show I am not really 67% Scandinavian, as earlier results indicated. I'm slightly disappointed, since being 67% Scandinavian explained why I've never been able to get a decent tan. 

It seems the DNA database at has grown by leaps and bounds, something that has enabled more refined reporting of a participant's DNA results. This is something the company mentioned initially, stating results would likely become more precise as more people chose to participate in DNA testing. My own new and improved results show one thing has NOT changed.........I remain 100% European! 

So according to my new test results, I'm happy to report much more "specific" (and terribly intriguing) information. My genetic heritage comes from a broad list of locations, and the highest percentages are from the British Isles and Ireland, as shown here.

British Isles  -  46%  

Ireland  - 22%

The two results above (a total of 68%) are remarkable, but not surprising, since my parents and grandparents always told me we were "Scotch-Irish." And we have lots of red hair on my mother's side of the family to prove it!

Europe West - 26% 

What the heck does this mean? Were my ancestors from Austria, Germany, or France?

Not explains a "Europe West" result could denote ancestry from one or more of a dozen countries, apparently classified as "Europe West." 


Also: England, Denmark, Italy, Slovenia, Czech Republic

To say the least, my ancestry is a hodge-podge of cultures, don't you think? 

O.K. So now my ancestry is up to 94% European? Where's the other 6%??

Below the list of western European countries is a drop-down menu that includes something calls "trace elements." See below:

Iberian Peninsula - 3%

The online explanation for Iberian Peninsula says my ancestors were from Spain and/or Portugal, but could also be France, Morocco, Algeria, and Italy. Iberian Peninsula involvement may explain dark hair and blue eyes of a very large number of paternal family members. And Morocco and Algeria involvement may explain the J1 Haplogroup identified in some of my paternal male ancestors.

But there is more.....

Holy smokes! I thought I was 67% Scandinavian....wrong. Revised DNA results show I'm only 2%. Guess it doesn't take much Scandinavian ancestry to prevent me from tanning.

Finnish/Northern Russia <1%. No wonder so many of my cousin matches (maternal and paternal) show origins in the Volga/Ural Mountain area. 

Now to unravel the connections for over 3,500 cousin matches.......

Thanks, am truly genetically enlightened.

Monday, November 11, 2013

A Salute to Ancestors and Family Members Who Served in the Military

Veterans' Day is a special day for honoring men and women who have fought and continue to fight for our country's freedom. And I thank each one of them for their service to this country. Beginning with the American Revolution, at least one of my ancestors or other relatives has served in each of this country's major wars, declared and undeclared. Two of my sons served a total of ten years in the United States Air Force, and the younger of the two served in the war  in Afghanistan. This post includes the names of my known ancestors and other relatives who were members of the military and includes the wartime period during which they served.  

Francis Baldridge - American Revolution
John T. Baldridge - War of 1812 (NY Infantry)
Edward Tillman Branch - War of 1812 (VA Militia) 
Asberry Gibson (Carroll County, MS) - Civil War
William Bailey Netherland (Holmes County MS) Civil War (Red's Co. MS)
Woodard Young (Holmes County MS) - WWI
Elton Young  (Holmes County MS) - WWII 
Walter Young (Holmes County MS) - WWII
William ("Billy") Young - (Holmes County MS) WWII - killed during USAF training mission
James Porter (Attala County) - Served in WWII in Europe
E. T. Branch (Holmes County) - WWII 
E. T. Branch, Jr. (Attala County) - WWII
J. L. Branch (Humphreys County) - WWII
J. L. Branch (Hinds County) - served in U. S. Army during Vietnam Era

Today, I honor them.

Sunday, November 10, 2013

Tillman Branch's Murder - Mississippi Supreme Court Affirms Matthew Winter's Sentence

This is a follow-up post to an earlier brief account of the murder of Tillman Branch, the subject of a book I am currently writing. The book, tentatively entitled "Tillman Branch, King of the Mississippi Bootleggers," is scheduled for publication by The History Press in April 2014. 

The earlier posting included a decision by the U.S. District Court, Northern Division, Greenville, Mississippi, regarding the legality of Matthew Winter's guilty plea, entered in Circuit Court of Holmes County in 1963. That decision was subsequently appealed to the Supreme Court of Mississippi, asking for Winter's guilty plea to be voided and his sentence vacated based on the contention that Negroes had been systematically excluded from a Grand Jury that indicted him and that Winter's attorney, David Crawley, Jr., had not advised the accused of his right to challenge the jury panel. The decision of the Supreme Court of Mississippi, rendered by Memorandum dated February 8, 1971, can be read below. 

Interestingly, the case would be appealed later to the U. S. Court of Appeals, Fifth Circuit, a matter that will be discussed further in the upcoming book.

STATE of Mississippi.
Supreme Court of Mississippi.
February 8, 1971.

Constance Iona Slaughter, Jackson, for appellant.
A.F. Summer, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for appellee.
INZER, Justice:
This is an appeal by Matthew Winters from a judgment of the Circuit Court of Holmes County overruling appellant's motion to vacate his previous conviction by a plea of guilty to a charge of murder, and the life sentence imposed as a result of his plea. We affirm.
Appellant, a Negro, was indicted at the April 1963 term of the Circuit Court of Holmes County for the murder of E.T. Branch, a Caucasian. He was at the time seventeen years of age and his family employed David E. Crawley, Jr. of Kosciusko, Mississippi, to defend him on this charge. Upon arraignment appellant pled not guilty. His counsel, after an investigation, was convinced from what appellant and members of his family had told him relative to the facts in the case that appellant had no real defense to the charge unless a mental examination would reveal that appellant was insane. Counsel then filed a petition asking that appellant be committed to the state hospital for a mental examination, and the court entered an order so committing him. He was found to be without psychosis and was returned to the Holmes County Jail. At the October 1963 term appellant entered a plea of guilty to the charge of murder and was sentenced to serve a life term in the State Penitentiary.
On October 6, 1969, appellant filed a motion in the Circuit Court of Holmes County seeking to have his sentence vacated. The motion alleged that at the time of his indictment, and for a long time prior thereto, Negroes had been deliberately excluded from service on the grand and petit juries in violation of the Fourteenth Amendment. It was also alleged that appellant was denied his right of effective assistance of counsel because his counsel failed to advise him of his right to challenge the indictment on the systematic exclusion of Negroes from the grand jury and his right to stand trial by a jury from which Negroes had not been systematically excluded. It was further alleged that because he was a Negro layman and uneducated in law, he did not recognize or become aware of his constitutional right until shortly before filing his petition to vacate.
The trial court conducted a full evidentiary hearing on the motion, and the evidence supports the following finding by the court:
The court finds from the testimony presented at the hearing that David Crawley, Jr., is and has been a member of the Mississippi State Bar in good standing since 1942, that as a part of his practice prior to 1963, he had handled a number of criminal cases, including murder cases. The court further finds that the petitioner's attorney, Mr. Crawley, investigated the charges against his client thoroughly, that his investigation showed no substantial conflicts as to the occurrence of the crime, that Mr. Crawley believed based upon his investigation that to go to trial would put his client in imminent danger of receiving the death penalty, that Mr. Crawley considered raising every possible issue and defense, including the systematic exclusion of Negroes from jury service in Holmes County and would have done so had the case been tried, that although the intention to raise the defense of systematic exclusion of Negroes from jury service was not communicated to the petitioner, it was communicated to the District Attorney during the plea bargaining. The court therefore concludes that the petitioner was advised of and knew the elements of the charge against him, was advised of his rights, and was aware of the sentences which could be imposed, including the death penalty. The petitioner knowingly, intelligently and voluntarily entered his plea of guilty upon the advice of competent counsel. The petitioner's voluntary guilty plea waived all non-jurisdictional defects. Lantz v. United States, 417 F.2d 329 (5th Cir. Oct. 6, 1969); Picard v. Allgood, 400 F.2d 887 (5th Cir., 1968); Askew v. Alabama, 398 F.2d 825 (5th Cir., 1968); Henderson v. United States, 395 F.2d 209 (5th Cir., 1968); Busby v. Holman, 356 F.2d 75 (5th Cir., 1966); and Clark v. Cook, Civ. No. 3702 (C.C.S.D.Miss., June 10, 1969).
The decision of the trial court is in keeping with our holding in Ellzey v. State, 196 So.2d 889 (Miss. 1967), where we held an eighteen year old defendant who had voluntarily pleaded guilty to murder could not thereafter urge that plea was void on the theory that Negroes had been systematically excluded from jury service in that county and that he had not been advised of his right to challenge the panel. We adhere to this decision for the same reasons stated in the opinion. We are aware that there are decisions of the Fifth Circuit Court of Appeals and the Federal District Courts holding contra. However, such decisions are not binding on us, absent a decision of the Supreme Court of the United States holding to the contrary, we choose to follow the well-established precedent in this state.
For the reasons stated, this case must be and is affirmed.

Wednesday, October 23, 2013

The Murder of Tillman Branch

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,
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.
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.
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.
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.
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.
Even so, systematic exclusion from jury service on the basis of race is 1042*1042 a defect which may be waived. A guilty plea understandingly and voluntarily entered waives all non-jurisdictional defects, including any defect arising out of systematic exclusion from jury service on the basis of race. Throgmartin v. United States, 424 F.2d 630 (5 Cir. 1970). File v. Smith, 413 F.2d 969 (5 Cir. 1969).
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.
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:
"At the outset we advert to the settled rule in this Circuit that a voluntary plea of guilty waives all non-jurisdictional defects, including the right to challenge the construction of the grand jury. Williams v. Smith, 5th Cir. 1970, 434 F.2d 592; Throgmartin v. United States, 5th Cir. 1970, 424 F.2d 630. Under this rule, were we to find that petitioner's guilty plea was voluntarily entered, we would be precluded from any consideration of the issue of grand jury composition. Thus we must dispose first of petitioner's attack on his plea of guilty." 438 F.2d at 1078.
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.