Wednesday, October 04, 2006

US v. US District Court for the E.D. Ca. ex real Allen Harrod, No. 06-72498 (10-3-06). The 9th (per curiam) grants a mandamus and rules that the gov't must consent under Fed R Crim P 23 for jury waiver. The case arises from multicount interstate travel resulting in sexual abuse charges. the details are lurid and tragic. Defendant sought to waive a jury and try the case to the court on the sole issue of intent. The gov't objected. the court overruled the objection, believing that the only way to ensure a fair trial would be to dispense with the jury. The Supremes in Singer v. US, 380 US 24 (1965) seemed to require gov't agreement, although a little wiggle room was left with the language that there may be circumstances so compelling that a judge trial was the only way to ensure a fair trial. Over the years, this wiggle room has shrunk to nonexistent. The circuit cases come pretty close to finding that the rule is absolute. The 9th looks at history, the policy arguments for jury trial, and considered this exception, but found that it need not see if this was one such case. Instead, the 9th held that it was sure an experienced and able judge can ensure a fair jury. The 9th then listed five (5) such steps -- extensive voir dire and questionnaires, limiting "bad act" evidence, limiting cumulative evidence, limiting witnesses, stressing jury instructions. These "instructions" are a handy check-list to use in other cases to ensure fair juries (would that courts used the checklist more).


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