holding that even when prospective jurors are excluded for simply voicing a general opposition to or discomfort with the death penalty, defense counsel’s failure to object to the striking for cause of such prospective jurors results in waiver of the issue
How later courts described this case
- holding that even when prospective jurors are excluded for simply voicing a general opposition to or discomfort with the death penalty, defense counsel’s failure to object to the striking for cause of such prospective jurors results in waiver of the issue
- pointing out that “[djefense counsel was obviously satisfied that the veniremen whose exclusions are now challenged were properly excluded under Witherspoon,” and holding “that a Witherspoon issue [can] be waived.”
- pointing out that "[d]efense counsel was obviously satisfied that the veniremen whose exclusions are now challenged were properly excluded under Witherspoon," and holding "that a Witherspoon issue [can] be waived."
- finding waiver where defendant insisted on particular counsel who was unavailable or by insisting on private counsel but failing to take any steps to retain an attorney
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Commonwealth v. Lucarelli, 601 Pa. 185 (2009)
484 A.2d 1365, 1375-76 (Pa. 1984) (“Just as a criminal defendant may knowingly and intelligently choose to waive his right to be represented by counsel, so too may a defendant knowingly and intelligently choose to proceed to trial represented by counsel who has had little or no time for preparation. In the latter case, the defendant must accept the consequences of counsel’s lack of preparation.”), abrogated on other…
The opinion
*260 NIX, Chief Justice,
dissenting.
I am constrained to reiterate my dissent from the majority’s conclusion that death-qualified juries are not conviction prone. As I stated in my dissenting opinion in Commonwealth v. Maxwell, 505 Pa. 152, 172 , 477 A.2d 1309, 1319 , cert. denied, — U.S. —, 105 S.Ct. 370 , 82 L.Ed.2d — (1984), "... studies now demonstrate convincingly that persons favoring the death penalty are significantly more likely to vote for conviction in capital cases and that persons excluded from jury service on the basis of their unwillingness to impose the death penalty represent a distinct and sizeable group of the community.” Id., 505 Pa. at 172 , 477 A.2d at 1319 . Thus I believe that the defendant’s right to trial by an impartial jury selected from a representative cross-section of the community has been violated by the death qualification process because this process “produces juries that are both prosecution prone and unrepresentative.” Id., 505 Pa. at 172 , 477 A.2d at 1319 . Therefore, I dissent.
Further, even assuming the continued efficacy of the death-qualification process, the record reveals that trial counsel failed to object to the prosecution’s challenge for cause of several potential jurors whose testimony did not establish their excludability under Witherspoon v. Illinois, 391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968). Trial counsel made no attempt to rehabilitate these challenged veniremen through further questioning as to their ability to return a verdict of death where the evidence called for such a verdict.
While I am inclined to agree with the majority that appellant’s naive pre-trial tactics should be considered in an evaluation of counsel’s stewardship, those actions on the part of appellant cannot be deemed in any way to justify counsel’s omissions during the selection of the jury proceedings. Lack of preparation time is irrelevant to trial counsel’s ability to respond to a prosecutorial challenge to a venireman on Witherspoon grounds; all that is demanded of counsel in such situations is a knowledge of the law. For *261 that reason I am convinced that our normal test of stewardship, whether counsel’s actions had a reasonable basis designed to effectuate the interests of his client, should be applied. I would in the alternative remand for an evidentiary hearing to determine trial counsel’s reasons for not objecting to the exclusion of the veniremen in question.