Chicago Daily Law Bulletin
May 08, 2009 Volume: 155 Issue: 91

Defendants need to be seen and heard

A first-time criminal defendant quickly learns the central rule of courtroom decorum from the trial judge: ''Sir, you must speak to me through your lawyer.''

But Manuel Rincon recently learned that there is another side to this proposition that judges fail to tell defendants: ''Hey, if you snooze, you lose.'' Because Rincon did not contradict his lawyer in open court - and despite the fact that the trial judge never once asked Rincon to speak - Rincon lost his chance for a jury trial. Overly polite defendants need to read People v. Rincon, 326 Ill. Dec. 945 (2d Dist. 2008).

At his arraignment for attempted arson on Jan. 19, 2006, Rincon was present with his attorney when the judge read him a list of rights including ''You have the right to a trial by judge or jury.''

Over nine months later on Friday, Oct. 27, Rincon and his lawyer appeared in court for a final pretrial conference. His lawyer at one point stated, ''We are indicating a bench trial on this matter.'' The trial judge said, ''I don't believe we've addressed Mr. Rincon as to a jury waiver. You're advising the court he wants to waive jury?'' and the defense attorney responded ''Yes, sir.'' The judge and the defense attorney then agreed that the matter would be ''reserved'' until the following Monday.

On Monday, Oct. 30, with Rincon present, the judge asked defense counsel whether the trial would be a bench trial. Counsel responded affirmatively. A written jury waiver signed by Rincon was filed sometime that day. A bench trial ensued, and Rincon was convicted and sentenced.

On appeal, Rincon argued that the record did not contain a valid jury waiver from him. He contended that the record does not show that he ever made a personal waiver in open court.

The 2d District Appellate Court began its analysis by noting that the right to a jury trial is guaranteed by the U.S. Constitution, by the Illinois Constitution, and by state statute. It then noted that the U.S. Supreme Court has held that the right to a jury trial is so ''fundamental'' that it is one of the handful of rights over which the defendant - and not his lawyer - has ''ultimate authority.'' Jones v. Barnes, 463 U.S. 745, 751 (1983). The right cannot be waived by a defendant's attorney ''without the fully informed and publicly acknowledged consent'' of the defendant. Taylor v. Illinois, 484 U.S. 400 408-09, 418 n.24 (1988). And the Illinois Supreme Court has been just as protective of the defendant's right. It has construed the Illinois statute to mean that ''a defendant validly waives his right to a jury trial only if [the waiver is] made 1) understandingly and 2) in open court.'' People v. Scott, 186 Ill.2d 283, 285 (1999). See People v. Bannister, 232 Ill.2d 52 (2008) (standards for jury waiver).On the other hand, there is no constitutional requirement that the trial judge actually apprise the defendant of his right to a jury trial. People v. Steiger, 208 Ill.App.3d 979, 981 (1991). In fact, there is no ''set admonition or advice'' that a trial judge must impart to a defendant. People v. Bracey, 213 Ill.2d 265, 270 (2004). A valid waiver exists if there is an express statement by defense counsel in open court, in the defendant's presence and without his or her objection, that the defendant wants to waive a jury. People v. Elders, 349 Ill.App.3d 573, 578 (2004). The 2d District had no trouble deciding the case. On both Oct. 27 and Oct. 30, the defense attorney told the trial judge the defendant was waiving a jury. Because the defendant failed to object to what his attorney said, the 2d District held that Rincon ''effectively waived his, albeit personal and fundamental, right to a jury trial.

''Wait a minute,'' you might say. ''If it is a right that can only be waived personally by the defendant, how can silence in the face of an attorney's remark constitute a personal waiver?''

Simple. Illinois courts have said, ''A defendant speaks and acts through his attorney.... Thus, where defense counsel informs the trial court of the defendant's [waiver], the defendant has knowingly and understandingly consented to the waiver.'' Steiger, at 981-82.

''But that makes no sense,'' you say. ''I thought the right to a jury trial is so fundamental that it is one of the few rights that a defendant must personally waive without the filter of his attorney.''

What's the response? As Ring Lardner once said, '' 'Shut up,' he explained.''

If you are having trouble understanding all this, you are not alone. In a special concurrence in Rincon, Justice Robert D. McLaren said, ''I have a problem with the logic of the case law that suggests that a defendant may waive his individual right to a jury trial merely by remaining silent in open court while his attorney states that the right to a jury has been waived, without referencing the fact that it was the decision of the defendant alone and not that of the attorney. I am aware that the law is well settled, but that does not make it logical.''

The Rincon decision repeatedly emphasizes that the defendant's refusal to contradict his lawyer in open court somehow shows that he personally and knowingly waived his right in open court. In doing so, the Appellate Court completely ignores the fact that at no time did the trial judge ever personally address Rincon and ask for his thoughts.

Wonder why Rincon didn't just speak up and talk to the judge directly?

Well, perhaps he read what happened when a defendant represented by counsel tried to do this in People v. Junior, 349 Ill.App.3d 286 (4th Dist. 2004). After the state presented its evidence, one co-defendant said to the judge, ''I want to make a statement. [The] co-defendant ... wasn't even there.''

The trial judge responded, ''Sir, you have asked to have a lawyer appointed and we have done that. You must speak through your lawyer. If you want to represent yourself, we will take away your lawyer. Can't have it both ways.'' At 289 (emphasis added).

Yet the Rincon court has the temerity to criticize the defendant for not contradicting his attorney in open court - when the trial judge never once asked the defendant to speak.

The remedy to this problem is so simple that it is banal: a Supreme Court rule that governs jury waivers the same way Rule 401 governs waiver of counsel and Rule 402 governs the taking of pleas.

An example? Try this from the Arizona Rules of Criminal Procedure: ''Before accepting a jury waiver the court shall address the defendant personally, advise the defendant of the right to a jury trial, and ascertain that the waiver is knowing, voluntary, and intelligent.'' Ariz. R. Crim. P. 18.1. I would even suggest a stronger rule that emphasizes that the waiver must be personally made in open court and on the record by the defendant both orally and in writing. (For the 7th U.S. Circuit Court of Appeal's approach to jury waiver, take a look at U.S. v. Williams, 559 F.3d 607 (2009)).

If this were an Illinois Supreme Court Rule, we could jettison a line of illogical case law and bring some common sense to an important area of criminal law.

Illinois Supreme Court Rules Committee, take note.