United States v. Shorty, No. 12-20-13) (12-20-13) (Reinhardt with Noonan and Watford)

(Note: This is an Az FPD case).

The 9th reverses the conviction and remands for failure to perform an adequate colloquy for the waiver of jury. A jury can be waived under Fed R Crim P 23, but it requires waiver in writing, government consent, court approval, and, under case law, that the waiver be knowing and intelligent. Even though the waiver must be written, the court has said, well, "not really," but then the oral waiver is given much stricter scrutiny. Here, the defendant had a low IQ, and was learning disabled. There was no written waiver. The colloquy was inadequate to see if the defendant really knew about his jury rights; and whether he intelligently was giving up the right to a 12 person jury, what a jury was, that it had to be unanimous, that he could participate in selection, and finally, that the court would then determine the facts. The 9th reversed. The 9th however did not find the evidence on the aiding and abetting claim was insufficient and so there was no double jeopardy bar to retrial.

Congrats to Lee Tucker, AFPD in the Az FPD (Tucson).