(dissenting). I dissent because I believe that defense counsel’s performance fell “measurably below that which might be expected from an ordinary fallible lawyer,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), in several respects.
Notwithstanding the Supreme Judicial Court’s permissive language in Commonwealth v. Ascolillo, 405 Mass. 456, 460-461 (1989), I believe that “any lawyer worth his salt,” Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., concurring), would have vigorously challenged (first for cause, then peremptorily) the seating of a police officer on a jury. I view such a failure as “manifestly unreasonable,” Commonwealth v. Adams, 374 Mass. 722, 728 (1978); it could not have been based on “informed, professional deliberation.” Ibid.
This is a classic example of a trial that has been “pervaded by an aura of bumble.” Commonwealth v. Mosby, 11 Mass. App. Ct. 1, 17 n.12 (1980). I summarily rehearse counsel’s serious missteps: (1) the initial ineptitude is manifested in defense counsel’s efforts, prior to jury impanelment, to obtain a favorable ruling from the judge; (2) the aforementioned failure to challenge the seating of the police officer; (3) counsel’s failure to recognize an obvious departure from the guidance meticulously set out in Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 581-582 (1998); and finally (4) the failure to object to the impermissible aspect of the prosecutor’s closing argument.
In short, defense counsel did not meet the test for assessing attorney performance set out in Commonwealth v. Saferian, supra, and its progeny.