dissenting. At the very least, we should continue to employ the deliberate bypass standard to determine the reviewability of habeas claims that were not properly pursued on direct appeal. The majority’s decision closes the door to petitioners who may have meritorious claims to challenge their confinement and who may, in fact, be innocent, but who, through no fault of their own, are precluded from pursuing their claims.
I must confess that the scales weigh heavily, at least for me, in favor of granting a new trial to persons whose claims cast a substantial cloud on the validity of their convictions. The rules established today have equal application for those who are incarcerated for life as well as those who are awaiting the death penalty. The majority, emulating the United States Supreme Court, restricts habeas corpus in the name of finality of decisions. Lest we forget, there is nothing more final than the imposition of the death penalty.
Furthermore, as in the present case, the vast majority of criminal defendants are represented either by public defenders or by special public defenders assigned by the state. These competent and dedicated attorneys carry heavy caseloads, which often play a role in procedural defaults. In State v. Weber, 221 Conn. 84, 89, 602 A.2d 973 (1992) (Berdon, J., dissenting), for example, this court denied the defendant’s petition for certification for review of the Appellate Court’s dismissal of his appeal because the public defender had failed to file a timely brief. The public defender was unable to meet the filing deadline because of his caseload and because he was defending another per*140son who was on trial for felony murder. The state, therefore, must take its share of the blame for the procedural defaults.
Finally, in most cases, procedural defaults do not result from the defendant’s failure to abide by the rules, but from defense counsel’s actions. I could accept the new standard advanced by the majority today if each defendant could be assigned a perfect appellate attorney. That is not possible given human fallibility; even great trial advocates make mistakes. In many cases, these mistakes may not reach the level of ineffective assistance of counsel and therefore leave the defendant without a remedy to correct any injustice.1
The majority rejects the deliberate bypass standard for essentially two reasons. First, the majority notes the problems associated with granting a new trial years after the alleged crime. I too recognize the difficulty of conducting a second trial when memories have faded and evidence is not easily available. In many cases, however, these problems are ameliorated by the rules of evidence permitting admission of a witness’ testimony at a prior proceeding under certain circumstances. See, e.g., State v. Outlaw, 216 Conn. 492, 504-506, 582 A.2d 751 (1990) (trial court properly admitted transcribed testimony of witness who had testified at the probable cause hearing but was unavailable at trial); see also In re Durant, 80 Conn. 140, 151-52, 67 A. 497 (1907); C. Tait & J. LaPlante, Handbook of Connecticut Evidence (2d Ed. Sup. 1992) § 11.4.1. In addition, a witness’ prior inconsistent statement could be introduced into evi*141dence for substantive purposes under certain circumstances. State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
Relying on Johnson v. Commissioner of Correction, 218 Conn. 403, 416-17, 589 A.2d 1214 (1991),2 the majority claims that under the deliberate bypass standard there must be a showing that “the defendant had personally made a knowledgeable waiver of his constitutional procedural rights” and uses this extreme interpretation to reject the deliberate bypass rule. Whether there has been a “deliberate bypass” on appeal should not depend on whether the defendant made a personal, deliberate choice not to pursue a certain claim, but rather, on whether the choice was made by appellate counsel. This distinction is reasonably based upon the role of appellate counsel in relation to the decision of what issues should be pursued on appeal. In Jones v. Barnes, 463 U.S. 745, 754, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983), the United States Supreme Court held that appellate defense counsel does not have a constitutional duty to raise every nonfrivolous issue requested by the defendant. As a result, defendants should not be precluded from pursuing habeas claims that their attorneys chose not to pursue. In addition, the difficulties of establishing “a record in the trial court showing that the defendant had personally made a knowledgeable waiver of his constitutional procedural rights on each of the myriad occasions that arise dur*142ing a criminal trial”; Johnson v. Commissioner of Correction, supra, 417; are not involved on appeal.3
In regard to the defendant’s personal waiver of claims, the majority suggests that the deliberate bypass rule would encourage defense attorneys to “remain silent, rather than to confer with the client because ultimately the client would be better served in a habeas action by remaining ignorant of potential claims on direct appeal.” Tailoring the deliberate bypass rule as indicated above would put this claim to rest. Furthermore, here, as in Wainwright v. Sykes, 433 U.S. 72, 102, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), “the [United States Supreme] Court points to no cases or commentary arising during the past 15 years of actual use of the [Fay v. Noia, 372 U.S. 391, 439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963) deliberate bypass] test to support this criticism.”
Even if the “cause and prejudice” standard is applied, I would get to the merits of the petition in this case. The defendant is an African-American who sought to challenge the pool of jurors available for jury selection at trial, claiming that African-Americans were underrepresented as a result of the town quota system. Indeed, the United States Court of Appeals for the Second Circuit in Alston v. Manson, 791 F.2d 255 (2d Cir. 1986), held “that the town quota system for selecting veniremen established by General Statutes (Rev. to *1431975) § 51-220 had resulted in underrepresentation of black people in the pool of prospective jurors and grand jurors serving New Haven County in 1975, when the trial of the petitioners in that case took place, and that this disparity violated the principle of equal protection.” Johnson v. Commissioner of Correction, supra, 406-407.
The habeas court found on remand the following relevant facts: “The petitioner was represented at his criminal trial by Attorney John Buckley, who testified at the habeas hearing. Sometime prior to the petitioner’s trial, Attorney Buckley reached an agreement with then Assistant State’s Attorney Patrick Clifford, who was then the prosecutor regarding petitioner’s case. The agreement reached was that at the petitioner’s trial, Attorney Buckley could rely on evidence presented in another case that he and Attorney Clifford had tried together wherein a jury array challenge was presented. Attorney Buckley filed a motion challenging the array of the selection or the method of selecting jurors in the State of Connecticut on behalf of the petitionfer] in his underlying criminal trial. The challenge to the array was filed within several days prior to the date of trial. The evidence that Attorney Buckley had presented in a different criminal case challenging the method of selecting jurors would be the same evidence that would have been presented in the petitioner’s case. Rather than Assistant State’s Attorney Patrick Clifford prosecuting the petitioner’s case, it was prosecuted by Assistant State’s Attorney Robert Devlin. Attorney Devlin was unwilling to stipulate to the use of the evidence used in the prior challenge to be used in the petitioner’s challenge. When informed by Attorney Devlin that the evidence used in the prior case would not be stipulated to in the petitioner’s case, Attorney Buckley informed the trial court that he wished to proceed with the jury challenge and would need time to subpoena the appropriate witnesses. The request of Attor*144ney Buckley to have until the following day to subpoena witnesses was denied by the trial court. An exception was taken to this ruling and the challenge to the array was never withdrawn by Attorney Buckley.”
In denying the defendant’s request for a continuance in order to enable him to summon witnesses to challenge the array, the following colloquy occurred between the trial judge and defense counsel:
“The Court: Are you ready to produce these people?
“Mr. Buckley: I will need time to subpoena them, Your Honor. What can I say to you?
“The Court: So you are not ready to go forward now with this motion?
“Mr. Buckley: I think, Your Honor, that is not quite proper.
“The Court: Well, with any evidence.
“Mr. Buckley: You mean right at this minute?
“The Court: Yes.
“Mr. Buckley: No, but I think I should deserve the consideration to be able to at least subpoena the people or get them here within the next day.
“The Court: Are your finished?
“Mr. Buckley: Yes, Your Honor.
“The Court: In spite of your brilliant and impassioned presentation, Mr. Buckley, the motion is denied.
“Mr. Buckley: Exception.
“The Court: Exception is noted.”
The majority asserts that “[e]ven if the denial of the continuance constituted cause for the petitioner’s failure to challenge the jury array at trial, the trial court’s action did not prohibit the petitioner from raising the *145claim on direct appeal that the trial court had abused its discretion by failing to grant the continuance.” (Emphasis in original.) I can only find one criminal case in which this court has held that the trial court’s denial of a motion for continuance constituted an abuse of discretion. State v. Williams, 200 Conn. 310, 321, 511 A.2d 1000 (1986). In State v. Beckenbach, 1 Conn. App. 669, 476 A.2d 591 (1984), the Appellate Court held that the trial court had abused its discretion in denying the defendant’s motions for continuance, but this court reversed that ruling. State v. Beckenbach, 198 Conn. 43, 501 A.2d 752 (1985).4 This court has granted the trial court such broad discretion in determining whether to grant or deny a continuance that an appeal on that issue is for all practical purposes frivolous. Even in State v. Walker, 215 Conn. 1, 9, 574 A.2d 188 (1990), on which the majority relies, the defendant’s claim was dismissed. When the trial court’s discretion is so great that it is virtually impossible to obtain reasonable review, the omission of that claim, especially when there is no proof that it was a deliberate omission, should satisfy the “cause” standard.
In addition, the defendant’s substantive claim goes to the core of our judicial process. “In our system of justice, not only must the accused be afforded a fair trial, but equally important there must be a perception of fairness by the community and the accused. Anything less not only undermines the credibility of this branch of government but also threatens the very fab*146ric of our democracy. And, of course, the perception that the person is being tried before a fair jury drawn from a cross-section of the community is high on the agenda in achieving that goal.” State v. Tillman, 220 Conn. 487, 514-15, 600 A.2d 738 (1991) (Berdon, J., dissenting), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). Neither the accused in this case nor the African-American community can possibly believe that the defendant was justly convicted when his jury was not selected from a pool of persons representing a fair cross section of the population. Accordingly, I would find that the “prejudice” has been established. See State v. Nims, 180 Conn. 589, 595-96, 430 A.2d 1306 (1980) (attempt to stack a jury panel by intentionally including members of a discernable class runs afoul of both due process and the right to jury trial).
Finally, the majority continues its assault on the writ of habeas corpus. Last year, I cautioned that there was a discernible trend to undermine this “ ‘ “bulwark against convictions that violate ‘fundamental fairness.’ ” ’ Gaines v. Manson, 194 Conn. 510, 516, 481 A.2d 1084 (1984). . . Safford v. Warden, 223 Conn. 180, 206, 612 A.2d 1161 (1992) (Berdon, J., dissenting); see also Bunkley v. Commissioner of Correction, 222 Conn. 444, 467 n.1, 610 A.2d 598 (1992) (Berdon, J., dissenting). My fears, unfortunately, were not exaggerated.
Accordingly, I respectfully dissent.
In a claim for ineffective assistance of counsel the “petitioner must make a two-fold showing: (1) that his counsel’s performance fell below the required standard of reasonable competence or competence displayed by lawyers with ordinary training and skill in the criminal law; and (2) that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.” Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986).
In Watley v. Commissioner of Correction, 227 Conn. 147, 628 A.2d 1314 (1993), I joined the majority in remanding the case to the habeas court to be reviewed under the “cause and prejudice” standard because of this court’s decision in Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991), and the probability that the standard could be met. In Watley, the habeas court denied the petitioner’s claim on the assumption that it was not to take additional evidence as a result of a prior remand. Nevertheless, I am not prepared to endorse Johnson for trial defects, and leave the issue for another day.
In Johnson v. Commissioner of Correction, 218 Conn. 403, 417, 589 A.2d 1214 (1991), Justice Shea pointed out the following: “If deliberate bypass were the sole barrier to such review, it could seldom be invoked for a default at trial. It is not common practice and would be unduly cumbersome to establish a record in the trial court showing that the defendant had personally made a knowledgeable waiver of his constitutional procedural rights on each of the myriad occasions that arise during a criminal trial when such rights are involved. Most of these choices during trial, such as whether to move for suppression of evidence or to cross-examine a particular witness, must necessarily be left to counsel, subject to the requirement that his performance satisfy reasonable standards of competency.”
In State v. Beckenbach, 198 Conn. 43, 501 A.2d 752 (1985), this court upheld the trial court’s refusal to grant a continuance because defense counsel was on trial in another case. This court held that “the matter of a continuance is traditionally within the discretion of the trial judge, which will not be disturbed absent a clear abuse. ... It must be shown that the trial judge acted arbitrarily and substantially impaired [the] defendant’s ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion. The test is a stringent one.” (Citations omitted; internal quotation marks omitted.) Id., 47.