Waiver of a Jury Trial is Charge Specific; a Valid Waiver Obtained Before the State Amends The Complaint With Additional Charges Does Not Carry Over to Those New Charges.

State v. Little, Minn.S.Ct., 8/13/2014.  The state charged Mr. Little with one count of criminal sexual conduct in the third degree, and one count of criminal sexual conduct in the fourth degree.  At some point before trial, Mr. Little waived his right to a jury trial on these two counts; everyone agreed up and down the line that the court had obtained a valid personal waiver from Mr. Little.  Then, right before trial, the state amended the complaint to add a count of first degree criminal sexual conduct.  Mr. Little’s attorney told the judge, in Mr. Little’s presence, that his client still waived his right to a trial by jury.  The judge said fine, heard the proof and found Mr. Little guilty.

In the court of appeals, Mr. Little challenged the absence of a personal waiver to a jury trial on the added CSC I count.  The court of appeals rejected that challenge and affirmed the conviction.   In an opinion by Justice Page, writing for six members of the court – Justice Stras concurred in part and dissented in part – the Supreme Court reverses the conviction and remands for a new trial.

Justice Page goes back to an 1893 case, McGeagh v. Nordberg, 53 Minn. 234, 55 N.W. 117 (1893) that says that a jury trial waiver only applies to the issues formed at the time of the waiver.  The Justice can find no reason to apply a different rule in criminal cases.  So, a defendant may waiver his right to a jury trial on the charges then in front of him, but if the state thereafter piles on additional charges there must be another personal waiver from the defendant.  In reaching this result, the court rejected the state’s argument that all that a defendant needs to understand about waiving a jury trial is the general concept of what a jury trial looks like.  Not good enough.  When  the state amends a complaint after a defendant’s jury trial waiver, the trial court must obtain a renewed waiver – personally from that defendant and not his lawyer – on the amended complaint.

That part was fairly easy, so much so that even Justice Stras concurred in that part of the opinion.  But, then the court has to decide what the remedy is, tricky because Mr. Little did not object to the omitted personal waiver.  Indeed, he stood by silently while his attorney made that waiver for him.  The absence of a trial objection asks the question, what standard of review to apply.  The state and the defense differed on just what standard of review should apply to this error:  plain error or “structural error.”  If it’s structural error then Mr. Little immediately advances to go, gets a new trial without any regard to prejudice from the error.  If it’s plain error, then Mr. Little has to establish that the error, besides being “plain” affected his substantial rights.  Justice Page ducks that fight all together by saying without deciding that Mr. Little was entitled to a new trial under plain error analysis.

Mr. Little easily gets past the first two requirements of plain error.  There was error, and it was plain because of this nineteenth century civil case.  Justice Page concludes that on the facts of this case that Mr. Little met the substantial rights requirement as well.  Those facts convinced the court, except for Justice Stras, that there were significant concerns whether Mr. Little and his counsel had fully discussed the advantages and disadvantages of waiving a jury trial after the state added the CSC I count.  Indeed, Mr. Little may not even have been aware of the additional count according to what he said to the pre-sentence investigation officer.

As mentioned, Justice Stras concurred in the conclusion that failure to have obtained an additional personal waiver was error.  Justice Stras dissented over the standard of review and over the grant of a new trial.  Justice Stras dons his cap and gown, picks up a piece of chalk and proceeds to lecture the other members of the court on the various standards of review of trial error.  He scolds them for not taking up the gauntlet of just exactly which standard of review should have been applied in this instance, and points out why it should be plain error.  The Justice just doesn’t like these messy short cuts of utilizing a particular standard of review without really saying whether it’s the correct one to be employing.  Justice Stras’s take on plain error leaves Mr. Little sitting in prison.  The Justice thought that Mr. Little needed to have shown that he would have chosen a jury trial had the trial court questioned him about the waiver on the new charge.  Result over process.  Justice Page focused on the process, concluding that it would be sheer speculation to try to second guess what Mr. Little might have done in the face of a valid waiver inquiry.