NCJ Number
15772
Journal
West Virginia Law Review Volume: 76 Issue: 2 Dated: (FEBRUARY 1974) Pages: 242-248
Date Published
1974
Length
7 pages
Annotation
A DISCUSSION OF THE 1972 WEST VIRGINIA SUPREME COURT DECISION WHICH HELD THAT ALTHOUGH THE VERDICT IN THIS CASE CONSTITUTED ERROR, SUCH AN ERROR MUST BE RAISED ON DIRECT APPEAL, AND FAILURE TO DO SO CONSTITUTES A WAIVER.
Abstract
IN WEST VIRGINIA THE JURY IS REQUIRED IN MURDER CASES TO DETERMINE FROM THE EVIDENCE WHETHER THE DEFENDANT IS GUILTY AND TO SET FORTH THE DEGREE OF MURDER OF WHICH HE IS CONVICTED. IN THIS CASE, ALTHOUGH THE JURY VERDICT DID NOT SPECIFY THE DEGREE OF MURDER, THE COURT IMPOSED A LIFE SENTENCE FOR FIRST DEGREE MURDER. SINCE THE DEFICIENCY IN THE JURY'S VERDICT WAS RAISED IN OPEN COURT, WITH PETITIONER'S COUNSEL MAKING NO OBJECTION, AND SINCE THE COURT AFFIRMED THE VERDICT AS ONE OF FIRST DEGREE MURDER, THE MAJORITY IN FORD V. COINER FELT THAT THE KNOWING AND INTELLIGENT WAIVER REQUIRED BY THE POSTCONVICTION HABEAS CORPUS ACT HAD BEEN MADE, THUS PRECLUDING ANY RELIEF. THE AUTHOR CITES THE DISSENTING OPINION, WHICH ARGUED THAT A VOLUNTARY WAIVER, RATHER THAT FORECLOSURE BY JUDGEMENT WAIVER IS IMPLIED IN THE WEST VIRGINIA ACT. THE AUTHOR ARGUES THAT SINCE THE PETITIONER MERELY REMAINED SILENT, UNDER THE VOLUNTARY RELINQUISHMENT TEST THE COURT WOULD HAVE FOUND NO GROUNDS FOR WAIVER. HE FURTHER STATES THAT THIS RULING COULD RESULT IN A SURGE OF FEDERAL LITIGATION, CAUSING A RENEWAL OF THE FEDERAL COURTS' PRE-EMPTION OF THE STATE COURTS' HANDLING OF HABEAS CORPUS LITIGATION. (AUTHOR ABSTRACT MODIFIED)