Sunday, February 11, 2018

Case o' The Week: Savor the Waiver - Laney and Defendant Confirmation of Jury Waivers

 Defense counsel wants a bench trial.
 The AUSA wants a bench trial.
 The district court is fine with a bench trial.
 Is the defendant down with an empty jury box?

 The Ninth would like to know.
United States v. Laney, 2018 WL 706497 (9th Cir. Feb. 5, 2018), decision available here.

Players: Decision by Judge Hawkins, joined by Judges W. Fletcher and Tallman. 
  Admirable win for ND Cal CJA panel stalwarts Scott Sugarman, Sugarman & Cannon, S.F., and for Robert Beles, Beles & Beles, Oakland.

Facts: Laney and his co-defendant, Federico, were managers in construction companies. Id. at *1. In a complicated scheme, they were accused of colluding to inflate costs, then pocketing payments for fictitious work. Id. at *2. They were charged with mail fraud. Id.
  Trial counsel (different attorneys than appellate counsel) submitted stipulations for a bench trial, with counsel’s e-signature. The stips had no signatures from the defendants, and no indication that defendants’ were involved in discussions leading to the stip. Id. The district court accepted the stip, there was an eleven-day bench trial, and the pair were found guilty of multiple counts. Id.
  Laney and Federico were sentenced to sixty and seventy months, respectively. Id. They appealed, challenging (among other things), the validity of the jury waivers.

Issue(s): “In these consolidated appeals, we must determine whether a presumption of validity attaches to a stipulation by defense counsel that their clients waive their right to a jury trial on their criminal charges.” Id. at *11 (footnote omitted). “Laney and Federico contend that their convictions must be vacated because the record does not reflect adequately that they made voluntary, knowing, and intelligent waivers of their rights to a jury trial.” Id. at *3.

Held:We conclude that counsel’s stipulations in this case did not raise a presumption of validity, and the record is insufficient to show that the jury trial waivers were voluntary, knowing, and intelligent. Therefore, although we conclude that the convictions are supported by sufficient evidence, we reverse and remand based on the ineffective jury trial waivers.” Id. at *1 (emphasis added).

Of Note: In a decision of first impression, the Ninth joins sister circuits in holding that a waiver of a jury trial must (logically) be signed by the defendant him or herself. Id. at *3.
  That’s a laudable rule, but as a practical matter, this new requirement for defendant signatures is probably irrelevant. DJs alarmed by this trial do-over in Laney will likely heed the Ninth’s advice – the Circuit has “implored the district courts to conduct colloquies with the defendant before accepting a waiver of his or her right to a jury trial.Id. at *3 (quotations and citation omitted).
  If you and the government plan on a bench trial, anticipate a DJ demanding a defendant’s in-court colloquy and express waiver (a better policy approach, in any event). This is a heck of a waiver to ask of a defendant: best that our clients going into that decision very well informed, and very clear on the record.

How to Use: Sasquatch in the Humboldt redwoods. 
 Bipartisanship in D.C.

A Bipartisan Bigfoot in D.C.

  Conditional pleas in the Northern District of California. 
  Each of these fantastic beasts are rumored to exist -- though documented instances have proven exceedingly rare.
  Add to this list, “Structural Error reversal on appeal.”
  Structural Error, a great bulwark of constitutional rights, has been steadily eroded on all fronts in the last decade or two. That makes the structural error reversal in Laney particularly sweet. Id. at *5.
  Note that Judge Hawkins specifically rejects the government’s scramble at post-trial reconstruction, offered to try to salvage the convictions from the structural error reversal. Id. This is a useful rebuff for appellate folks to remember in future cases: Rule 23 issues (jury waivers) are evaluated in the context of the time of the waiver, not in retrospect after the trial is complete.
For Further Reading: Remarkably, AUSAs often balk at bench trials (the federal government really doesn’t trust a federal judge to deliver a verdict?) Should the federal government get to veto our clients’ request for a bench trial, particularly in sensitive cases, such as child porn?
  For an interesting article arguing against a black ball for the government, see, Waiver of Jury Trials in Federal Criminal Cases: A Reassessment of the “Prosecutorial Veto” available here 

Image of Bigfoot in Dupont Circle from

Steven Kalar, Federal Public Defender, Northern District of California. Website at


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