Allegheny County judge disallows death-penalty jury in homicide case

An Allegheny County judge on Wednesday said he will not allow the district attorney’s office to seat a death-penalty qualified jury because of the ongoing moratorium on capital punishment in Pennsylvania.

Judge Anthony M. Mariani wrote in a 10-page opinion that compelling prospective jurors to sit through the “grueling and intrusive process” of jury selection when there is no chance that the death penalty will be carried out in Pennsylvania for years to come is “patently unjust.”

Gov. Josh Shapiro announced in February that he will refuse to sign any execution warrant that reaches his desk. He called on the General Assembly to abolish capital punishment in the state.

Based on the governor’s statements, Mariani wrote, it is “fundamentally unfair” to then require those same jurors to sit through evidence why a defendant should live or die “when it has already been decided by Gov. Shapiro that defendant will not be given the death penalty under any circumstances.

“The use of a court order (jury summons) to conscript citizens to this meaningless empaneling by ordeal and completely purposeless sentencing deliberation is an abuse of process, and, if this court were to enforce such an order, an abuse of discretion.”

Criminal law experts said that Mariani has no authority to take that action, and it will likely be reversed by the appellate courts.

“There is no precedent for this in Pennsylvania,” said Bruce Antkowiak, a former federal prosecutor who teaches law at Saint Vincent College. “The law is very clear and has been for a long time. … This is a decision left to the sound discretion of the district attorney.

“The rules require the branches of government to stay within their lanes.”

Under Pennsylvania law, prosecutors can seek the death penalty if they can prove one of a number of aggravating factors listed in the criminal statute — which can include killing a police officer in the line of duty.

Deangelo Zieglar, 26, of McKees Rocks, is accused of killing his ex-girlfriend, Rachel Dowden, two months after she got a protection from abuse order against him.

The district attorney’s office listed five aggravating factors in its decision to seek death against Zieglar, including that he was the subject of a PFA by Dowden and that he had previously been convicted of gun charges and robbery.

Zieglar’s jury trial is scheduled to begin in September.

In that case, when Judge Mariani asked the parties to submit questions for the jury selection process, he wrote, the prosecution submitted 34 proposed questions, with 16 of them specifically referencing the death penalty. The defense submitted 70 questions, Mariani wrote, with a full page of instructions.

The jury questionnaire process in a capital case, the judge said, is extensive and highly personal — including asking prospective jurors about their feelings on the death penalty, previous victimization, history of their family members and even television viewing habits.

“Jurors are not volunteers. Jurors are compelled by court order to appear for jury service,” Mariani wrote, and they are required to put their personal lives on hold, sometimes for weeks.

“The fact that the governor has announced that he will grant a preemptive reprieve in all cases directs the action taken by this court,” Mariani wrote.

But, Antkowiak said, just because the current administration will not sign a death warrant, does not mean the next one will follow suit.

Defendants can spend decades on death row, he continued.

“A new administration takes a new look at things and can decide this differently,” he said. “Until the legislature of the Commonwealth of Pennsylvania takes the death penalty off the table completely, it doesn’t mean the death penalty isn’t on the books.”

The last execution in Pennsylvania was in 1999, and there are currently 101 people on the state’s death row.

In a footnote of his opinion, Mariani said there is no precedent for the action he’s taking, but no precedent saying he can’t, either.

“Most likely the issue has never arisen since no governor has determined that all death penalty sentences will be granted reprieves before the jury is sworn to hear the case,” he wrote.

Allegheny County First Assistant District Attorney Rebecca Spangler said that the Zieglar case is pending, and the office has no comment on Mariani’s actions.

“We will officially respond to the filing after a thorough review,” she said.

It is likely, Antkowiak said, that the DA’s office will file an appeal with the state Supreme Court.

In an earlier court filing, Deputy District Attorney Mike Sullivan wrote that if there is evidence to support any single aggravating factor, the prosecutor’s discretion to seek capital punishment should not be disturbed.

In Allegheny County, the DA’s office is currently seeking death in six pending cases.

Mariani said his opinion is not based “on any particular view of the legality or morality of the death penalty” but solely on the “fundamentally unfair treatment and unreasonable infringement on the privacy rights of prospective jurors” that occurs in death penalty cases.

David A. Harris, a criminal law professor at the University of Pittsburgh, said Mariani is expressing a “very practical view: If the governor has said he’ll grant a reprieve of every death sentence that comes to him, the judge thinks there is no good reason for jurors to be put through the grueling process of jury selection involved in a capital case.”

However, like Antkowiak, Harris said the judge has no authority to do so.

“If the DA wants to put jurors through that process, despite what the governor has said, it’s up to the DA, and the DA gets whatever credit or blame there is for the discomfort of the jurors, for the not-going-to-be-imposed sentence, and all the rest.”