A recent three judge panel decision by the 9th Circuit illustrates the importance of putting any waiver of rights by the criminal defendant in writing. In U.S. v. Shorty, the defendant had his conviction for firearm-related charges overturned because his trial judge was not thorough enough in accepting the defendant's jury trial waiver. The panel found that the defendant's jury waiver was not made knowingly and intelligently.
According to the panel, the defendant and the judge engaged in the following colloquy with respect to waiving the right to a jury.
Court: Alright. 12 people would sit, listen to the evidence, and then apply the facts to the law, all of the testimony and all of the evidence that's submitted, and then make a determination as to whether or not you're guilty of these offenses. Do you understand that?
Defendant: Yes, ma‘am.
Court: Alright. And so you're telling me that you would rather not have the jury trial, you're willing to waive your right to that trial; is that correct?
Court: And you are—according to your lawyer, you would like to have a trial to the Court, which is to me. Do you understand that?
Court: And that's how you would like to proceed?
The panel found this colloquy deficient because the trial judge did not get the defendant's waiver in writing nor did the judge tell the defendant, who earlier informed the court that he had a low IQ, that
he could help choose the jury or that the jury verdict must be unanimous.Moreover, the court did not question Shorty in a way that would ensure that he understood the two pieces of information he was given.
Interestingly, the panel did not buy into the government's argument that the defendant's waiver was knowingly and intelligently because of his prior experience with the criminal justice system. According to the three judge panel,
we are aware of no case in which we have held that prior experience with the criminal justice system negates a court's responsibility to conduct an adequate colloquy before accepting a jury-trial waiver.Second, there is no evidence that Shorty had been properly instructed, on these prior occasions, of what his right to a jury trial entails. Finally, even if Shorty was properly instructed on his right to a jury trial, nothing suggests that he retained that information ten, fifteen, or even twenty years later when he waived the right again in 2010
Bottom line: When a criminal defendant wants to waive his right to a jury, get it in writing.