Bill Johnson on Lessley: The Value of Frank Exchange in the Trial Court & Other Thoughts

Let me add just a few thoughts to the consideration of Lessley.

First, the issue ducked by the court on whether the trial judge should be removed for cause is an interesting one.   We traditionally think of bias or prejudice as something arising outside of the courtroom:  some relationship or information the judge acquired about the parties, the attorneys, or the facts of the case from a source other than the consideration of the case.   The state’s beef with the trial judge in this case, however, arises directly from the judge’s handling of this case.  (Or perhaps from the judge’s known skepticism about issues in the case that are internal to this judge and thus not bias or prejudice at all, but the sort of judicial mindset that seems to me to be the appropriate subject of the one notice to remove granted to each side in Minnesota.  Here, however, for undisclosed reasons, each side had already exercised its one notice to remove on judges previously assigned to the case.)  While I can certainly understand the State’s frustration with the attitudes and opinions expressed by the trial judge, it is extremely troubling to allow a judge’s comments while considering or deciding an issue to be the basis for removal for bias or prejudice.  We want, I think, the trial judge to fully explain the basis of pretrial rulings – both to allow the parties to better comply with the rulings and to allow meaningful appellate review.  A rule on removal that encourages less explanation and penalizes frank exchanges between the judge and the parties is probably a far greater problem than occasionally requiring a party to try a case before a judge who has expressed strong opinions contrary to that party’s theory of the case.

Second, I find it interesting that in a 29 page majority decision, there is almost no discussion of the values, principles, and purposes underlying a right to waive a jury trial.  The majority opinion is a lengthy historical explication going back to the two competing constitutional conventions at the time of Minnesota statehood. At the end of the opinion, the court rather tersely dismisses the State’s policy arguments by noting “that the question before us is not whether it might be wise policy for a criminal defendant to need the consent of the State in order to waive a jury trial. Rather, the question is whether the State’s consent is required by article I, section 4 of the Minnesota Constitution.” Opin. at 28. It was a bit of a surprise to see the extent to which the “Living Constitution” is dead in Minnesota, at least in this opinion.

Third, the most important thing is that the Court addressed the issue head-on and gave us a fairly iron-clad rule:  the state does not have a constitutional right to a jury trial.  The door is left open for a statute or rule to give the state a voice in any decision by the defendant to waive his or her right to a jury trial, but until the statutes or rules are changed, the defendant does not need the state’s permission or consent to waive a jury and try a case to the court.  While there may be some question about the procedural posture that put the case before the court, see Carol’s post at Convolution #2, it seems to me resolution of this issue is a huge benefit to practitioners.  Setting aside this case’s two year hiatus while the issue was addressed, there are simply too many more pressing substantive issues in a criminal trial to continue to debate whether the state has the right to veto a defendant’s waiver of a jury trial.

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One Response to Bill Johnson on Lessley: The Value of Frank Exchange in the Trial Court & Other Thoughts

  1. Joel Sutcliffe says:

    What should the government do? A judge told the government that he thought that the case in front of him was not up to snuff(my words. The government case wasn’t very strong. Unfortunately defense lawyers are told this everytime they enter a Judge’s realm. “Why isn’t your client pleading guilty?” “Why are you waisting our time.” As the prosecutor sits there not having to defend his/her stance on the case the judge leans on, intimidates and shows disgust toward the defense lawyer for having the temerity to not know the rules. Guilty until proved innocent.

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