United States v. Walker, 71-1948

• Decision Date: 14 November 1972
• Docket Number: 71-1949.,No. 71-1948,71-1948
• Citation: 473 F.2d 136
• Parties: UNITED STATES of America v. John W. WALKER, Appellant. UNITED STATES of America v. Randolph JENKINS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.2d 136 (1972)

UNITED STATES of America v. John W. WALKER, Appellant.

UNITED STATES of America v. Randolph JENKINS, Appellant.

Nos. 71-1948, 71-1949.

United States Court of Appeals, District of Columbia Circuit.

November 14, 1972.

Mr. Harold H. Titus, Jr., U. S. Atty., with whom Mr. John A. Terry and Miss Ruth R. Banks, Asst. U. S. Attys., were on the brief for appellee.

Mr. Jerry C. Straus, Washington, D. C. (appointed by this Court), was on the brief for appellant.

Before WRIGHT, ROBINSON and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

Appellants were found guilty on all five counts of an indictment charging armed robbery and assault with a dangerous weapon. The sole issue basically¹ as posed by appellants is whether the District Judge, who tried the case without a jury, should have recused himself or at least have ordered a jury trial, after having been informed in the colloquy of counsel before trial that one of the defendants had offered a plea of guilty.

For a complete appreciation of what is involved in this particular case it would be helpful to see the full transcript of the colloquy between the District Judge, the prosecutor, and the two defense counsel; but for the purposes of this case and the principle we enunciate, we do not think it necessary to recite this verbatim herein. It is sufficient to say that as soon as the judge had mounted the bench he was informed by the prosecutor, "One minute ago defense counsel offered a plea of guilty, something I haven't cleared with my office. I don't know whether it would be accepted. . . ." Counsel for appellant Jenkins then informed the court that "this relates solely to the defendant Walker," whereupon the prosecutor stated, "Unless they both plead, we will go to trial."

Both defense counsel then made clear to the court that they had advised their clients of their constitutional right to a jury trial, both desired a nonjury trial, both were willing to sign the written form waiving a jury. The prosecutor then took two well advised precautions to protect his position: First, he stated, "I have no objection, Your Honor, to a nonjury trial. However, I think the court should be aware that it is my understanding that the sole question in this case is one of credibility of a witness, and it is a question of fact. There are no questions of law involved. Possibly, understanding that, Your Honor may prefer that the question go before a jury, . . ." Secondly, the prosecutor requested that the court "direct each defendant personally to waive on the record, and obtain their waiver other than the form," which was done by allocution of both defendants.

On this state of the record, for the District Court to proceed with a nonjury trial was not plain error, because the defendants and their counsel had in writing and orally waived a jury trial, after they had clearly heard the District Judge being informed that one of the defendants had offered a plea of guilty to the prosecution, which was ultimately rejected. And also, the trial judge did not know what type of plea was offered, whether it went to one of the lesser counts or included all the counts of the indictment (which would indeed have been a novelty in the usual course of plea bargaining in the District Court). Furthermore, pleas of guilty are often offered for reasons other than actual guilt.² The District Judge is presumed to have a trained and disciplined judicial intellect, which in a nonjury trial can receive evidence, rule on its admissibility, and discard from his eventual decision on the merits that evidence which he has ruled to be inadmissible for the purposes of his decision. This mental discipline is supposed to be part of the resources which the trial judge brings...