Dereje v. State, Minn.S.Ct., 10/9/2013. This comes up – and gets its comeuppance – from the court of appeals. Read here. It’s the latest go round in the mess within Rule 26.01 – court trials, trials on stipulated facts, dispositive motions – and the attendant requirements for each (never mind what to call these things). The court has now come full circle. After complaining repeatedly – read here, here, and here - about lawyers' inability to keep the myriad non-jury trial alternatives straight – especially the different rights required to be waived for each - it turns out it doesn't really matter after all.
Mr. Dereje thought he was signing up for a stipulated facts trial, so he waived not only his right to a trial by jury but he also waived a bunch of other rights as well: his right to have prosecution witnesses testify and then confront those witnesses, his right to testify, and his right to compel the testimony of favorable witnesses. The lawyers gave the judge the Complaint and the police reports (and then apparently went home) but the reports contained not one but two completely opposite accounts of the alleged facts: the alleged victim said (not too convincingly) that Mr. Dereje had sexually groped her; Mr. Dereje said, no, he didn’t. The trial court looked at all that and then made findings of fact to support convicting Mr. Dereje. That sounds closer to a trial (sort of) without a jury, which only requires (at a minimum) a waiver of the right to a jury trial.
The court of appeals had concluded that you can’t have a stipulated facts trial when the parties don’t agree what those facts are. Nonetheless, this error was harmless because Mr. Dereje’s waiver of all of his rights – not just to a jury – converted the thing into a “valid bench trial based on stipulated evidence.” Justice G. Barry Anderson, joined on this issue by Chief Justice Gildea, and Justices Dietzen, Stras and Wright, (Lillehaug still not participating), agreed with this determination. Justice Anderson thought that this is so because Mr. Dereje waived all of his rights, and the trial court made sufficient findings of fact from the stipulated evidence.
The court of appeals had also concluded that Mr. Dereje had received ineffective assistance of counsel, which the court said was a structural error because counsel had “entirely failed to subject the prosecution’s case to meaningful adversarial testing.” Justice Anderson (without Justice Wright) rejects this conclusion. After all, defense counsel submitted police reports with Mr. Dereje’s account of events. How much more advocacy do you want? Instead of either remanding back to the trial court for a Strickland deficient performance/prejudice analysis (or doing it themselves) the majority just ignores Strickland entirely.
Justice Wright does not; she performs that analysis, as well as the structural error analysis, in her dissent, in which Justice Page joins. Justice Wright concluded that counsel’s performance was a structural error that entitled Mr. Dereje to a new trial without a showing of prejudice. She said that counsel had “abdicated” his role as an advocate. Because the only accuser against his client did not testify and was thus not subject to cross examination –curiously, the justice does not question counsel’s advice to Mr. Dereje to permit this –counsel’s only remaining tool was his mouth: bring to the trial judge’s attention “important facts bearing on [the alleged victim’s] credibility. Instead, counsel remained mute. In short, counsel “uttered not one word of advocacy on behalf of his client.”
To cover the waterfront, Justice Wright went on to conclude – for the same reasons - that counsel’s performance also met the Strickland standard as well.
Justice Page also dissented. Although he joined Justice Wright’s dissent in which she concluded that it was okay to convert a stipulated facts trial into a bench trial on stipulated evidence, he, nonetheless didn’t like it because of the differing waivers associated with these two procedures. Justice Page concluded that Mr. Dereje’s waivers to one thing – a stipulated facts trial – did not validly carry over to a totally different thing – a court trial on stipulated evidence. Justice Page thought that Mr. Dereje was entitled to a new trial for this reason. Justice Page also believed that Mr. Dereje had received ineffective assistance of counsel – both structural and Strickland which also entitled him to a new trial. Justice Wright joined this dissent.
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