Winters v. Cook

• Decision Date: 28 November 1973
• Docket Number: No. 71-3323.,71-3323.
• Citation: 489 F.2d 174
• Parties: Matthew WINTERS, Petitioner-Appellant, v. Thomas D. COOK, Superintendent of The Mississippi State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

489 F.2d 174 (1973)

Matthew WINTERS, Petitioner-Appellant, v. Thomas D. COOK, Superintendent of The Mississippi State Penitentiary, Respondent-Appellee.

No. 71-3323.

United States Court of Appeals, Fifth Circuit.

November 28, 1973.

COPYRIGHT MATERIAL OMITTED

Roy S. Haber, George Beach Taylor, Jackson, Miss., James Robertson, Washington, D. C., for petitioner-appellant.

A. F. Summer, Atty. Gen., Guy N. Rogers, Asst. Atty. Gen., Jackson, Miss., for respondent-appellee.

Before BROWN, Chief Judge, RIVES, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

CLARK, Circuit Judge:

The factual circumstances of Winters' crime and the procedural context in which his subsequent guilty plea was entered are set out in detail in the district court's opinion, published at 333 F.Supp. 1033, and need not be reiterated at length here. Winters was indicted by the Grand Jury of Holmes County, Mississippi, on a charge of murder arising out of the shooting death of one E. T. Branch. On the advice of retained counsel Winters pled guilty to that charge and was sentenced to life imprisonment. Winters now seeks federal habeas relief alleging that Negroes were illegally excluded from the grand jury which indicted him, that his guilty plea was not voluntary and intelligent, and that he was denied effective counsel.

The Grand Jury Discrimination Claim

Based upon two separate but factually interrelated legal theories we hold that Winters may not assert the alleged grand jury discrimination as a grounds for habeas relief. First, his counsel's actions constituted a valid waiver to all objections to the composition of the grand jury, and second, Winters' guilty plea foreclosed his assertion of that constitutional claim.

Waiver by Counsel — As the court below found on clear record evidence, Winters' attorney fully considered the possibility of raising constitutional objections to the racial composition of the grand jury, but rejected that course of action in favor of a plea of guilty. By such a plea his client was assured of receiving the prosecution's recommendation of a life sentence (with the possibility of a parole after serving ten years), thus avoiding what counsel reasonably considered was the distinct possibility of the death sentence. Counsel testified that the threat of his urging these constitutional objections to the jury selection procedures was the "pry pole" that he used in getting the state to allow the defendant to enter a guilty plea. In his opinion as an experienced criminal attorney this procedure utilized the unlawful condition in the most effective way. Even the most skillful trial tactician should be hard pressed to fault counsel's considered and conscientious strategy to waive this option in return for practical assurance that his client would not be executed. Where, as here, a competent attorney who is well-versed in the defense of murder charges deliberately refrains from making a known constitutional objection to the composition of a grand or petit jury for strategic purposes, there has been a deliberate by-pass and waiver under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

The effect of this waiver was not vitiated by the attorney's failure to consult with Winters about the constitutional objections to the jury composition. As Fay points out, "a choice made by counsel not participated in by the petitioner does not automatically bar relief." 372 U.S. at 439, 83 S.Ct. at 849. The implication of this last statement — that some strategic decisions which entail the waiver of a constitutional right may be made by counsel without consultation with the accused — was made express in Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965):

Although trial strategy adopted by counsel without prior consultation with an accused will not, where the circumstances are exceptional, preclude the accused from asserting constitutional claims, see Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964), we think that the deliberate bypassing by counsel of the contemporaneous-objection rule as a part of trial strategy would have that effect in this case.

379 U.S. at 451-452, 85 S.Ct. at 569 (emphasis supplied). Henry requires inferior federal courts to determine whether the circumstances of a particular case are in the exceptional category from which the bar of waiver, created by the good faith actions of a criminal defendant's attorney, has been lifted.

The majority opinion of the panel that originally decided this case, which we today reverse, would have created a per se rule that even an intentional, strategic waiver by a lawyer of his client's constitutional rights cannot be binding. Specifically, the opinion stated:

Both the State courts and the district court in this case held that Winters\' plea of guilty waived his right to complain of the array of jurors in Holmes County. The rationale for such view is that Winters\' lawyer knew of the right and that by failing to raise the objection counsel effectively waived the right for Winters. But it is axiomatic that Winters is the one who must make the waiver, not his attorney. Winters had no idea that he could object to the jury composition. Before a waiver can be effective it must be knowingly given. Since Winters had not been informed of the right, his waiver did not encompass its relinquishment.

466 F.2d at 1395-1396 (emphasis supplied). Under this reasoning, the exception which Henry explicated would have swallowed the basic rule on which it is engrafted. "Axiomatic" or not, this syllogism — that since the rights are those of the defendant, he alone may waive them — must be rejected. To require an explanation of only the most important rights which arise during the course of a trial, with the advantages and disadvantages of raising each issue, in terms that would enable a defendant to make an intelligent and knowing waiver creates a heavy enough burden for both clients and lawyers. We refuse to enlarge the attorney's duty to include the responsibility to inform the defendant of every possible constitutional claim. See Developments in the Law — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1110-11 (1970).¹

Our concern here is more basic than the effect of such a rule on already crowded court dockets; it is that the rule contended for by Winters would make it virtually impossible to conduct a criminal trial in the future. Looking past the disruptive effect on counsel and the confusing impact on the defendant himself, it would be a futile command to require that a trial judge continually satisfy himself that the defendant was fully informed as to, and in complete accord with, his attorney's every action or inaction that involved any possible constitutional right.

Our Constitution has been held to afford all criminal defendants the right to counsel. The cardinal precept upon which the establishment of this right is predicated is that most defendants are untutored in the law and are unqualified to conduct their own defense. It would be incongruous to reflexively allow a defendant such as Winters to void his conviction when his privately-employed lawyer did what he was retained to do — use his skill and knowledge of the law to further the best interests of his client — because the lawyer did not first reason out his every action with his client and obtain his knowing agreement.

Though there are instances where a defendant's personal waiver is required, our examination of the facts of this case in search of the exceptional circumstances required by Henry discloses no such personal waiver right was present here. Case law demonstrates that the exceptional circumstances which justify a requirement that the defendant personally waive the right vouched-safe may be grouped in two broad categories: first, where there is evidence of fraud, or gross negligence or incompetence on the part of the defendant's attorney; and, second, where an inherently personal right of fundamental importance is involved.

As to the first category, there is absolutely no evidence in this record that the attorney for the defendant did anything other than to conscientiously represent the defendant to the best of his ability. As discussed infra, there is no substance to any charge of incompetence or negligence in this case. Thus, we need discuss here only Winters' attack on the good faith of his selected attorney, based on his interpretation of the language in United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 82 (5th Cir.), cert. denied, 361 U.S. 850, 80 S.Ct. 109, 4 L.Ed.2d 89 (1959), where this court stated:

As Judges of a Circuit comprising six states of the deep South, we think that it is our duty to take judicial notice that lawyers residing in many southern jurisdictions rarely, almost to the point of never, raise the issue of systematic exclusion of Negroes from juries.

This language from Goldsby has in subsequent cases been construed to support the proposition that this court must take judicial notice that white lawyers in this circuit almost always will sacrifice their Negro clients' rights to be tried by a constitutionally selected jury out of a fear of community opprobrium or social ostracism. Whether such judicial notice was court recognition of adjudicative facts or of legislative facts, see K. Davis, Administrative Law Treatise § 15.03 (1958), the majority of the court en banc now announces that it does not consider such breach of trust by counsel to be so prevalent in any jurisdiction of this circuit that this court should, in the absence of proof, place all or even some lawyers in this circuit under the cloud of such an accusation. Winters, and those raising a similar defense in the future, may not rely on any court to "notice" without proof that attorneys in this circuit are not to be trusted to make a strategic or tactical decision to challege...