US ex rel. Williams v. DeRobertis

• Decision Date: 06 May 1982
• Docket Number: No. 81 C 2086.,81 C 2086.
• Citation: 538 F. Supp. 899
• Parties: UNITED STATES of America ex rel. John WILLIAMS, Petitioner, v. Richard DeROBERTIS, Warden, Stateville, and Attorney General of the State of Illinois, Respondents.
• Court: U.S. District Court — Northern District of Illinois

538 F. Supp. 899

UNITED STATES of America ex rel. John WILLIAMS, Petitioner, v. Richard DeROBERTIS, Warden, Stateville, and Attorney General of the State of Illinois, Respondents.

No. 81 C 2086.

United States District Court, N. D. Illinois, E. D.

May 6, 1982.

COPYRIGHT MATERIAL OMITTED

Ann C. Tighe, Cotsirilos & Crowley, Ltd., Chicago, Ill., for petitioner.

Marcia Friedl, Melbourne A. Noel, Jr., Asst. Attys. Gen., Chicago, Ill., for respondents.

MEMORANDUM OPINION

MARSHALL, District Judge.

On May 13, 1975, petitioner John Williams was convicted in a bench trial in the Circuit Court of Cook County, Illinois. Petitioner was found guilty of armed robbery, in violation of Ill.Rev.Stat., ch. 38, § 18-2 (1979), and unlawful use of a weapon, in violation of id. § 24-1(a)(7). On June 10, petitioner was sentenced to a term of incarceration of & from 20 to 45 years on the armed robbery charge and a concurrent term of one to three years incarceration on the weapon charge. On direct appeal to the Appellate Court of Illinois, petitioner's conviction was affirmed. People v. Williams, 47 Ill.App.3d 798, 8 Ill.Dec. 177, 365 N.E.2d 415 (1977). The Illinois Supreme Court subsequently denied petitioner's petition for leave to appeal. Petitioner then sought post-conviction relief from the trial court, which was denied on January 29, 1980. On April 14, 1981, petitioner filed a petition for habeas corpus with this court, seeking relief under 28 U.S.C. § 2254 (1976). Through court appointed counsel, petitioner filed an amended petition for habeas corpus on November 2, 1981. Respondents have moved to dismiss the amended petition. Since petitioner has exhausted his available state remedies and properly preserved his claim for review by raising it in the state courts, this court must decide the legal question which all parties agree is presented by the petition: did petitioner validly waive his right to trial by jury under the sixth and fourteenth amendments to the Constitution of the United States when he was tried by the court without a jury in the Circuit Court of Cook County?

I

The relevant facts are not in dispute. At some point on or before June 10, 1975, petitioner signed a printed form of "jury waiver." The form is undated, and contains only the caption of petitioner's case, the printed words "I, the undersigned, do hereby waive jury trial and submit the above entitled cause to the Court for hearing," petitioner's signature, and the handwritten notation "filed/June 10, 1975/Morgan M. Finley/Clerk of the Circuit Court."

At the time the "jury waiver" was signed by petitioner, the following colloquy took place between the presiding judge, petitioner, his codefendants Willie Nelson and Victor Watts, and their counsel.

MR. VISHNY counsel for petitioner: In behalf of John Williams, it will be a bench.

MR. ISRAELSTAM counsel for Watts: In behalf of Watts, it will be a bench.

MR. LIVINGSTON counsel for Nelson: In behalf of Willie Nelson it will be a bench also.

. . . . .

THE COURT: Let the record show that Mr. William Nelson, is that you?

MR. NELSON: Yes.

THE COURT: You have read the jury waiver?

MR. NELSON: Yes.

THE COURT: Do you know what a jury trial is? That is, where 12 people of this County will be put in a box, and they will hear the evidence in this matter, and they will determine your innocence or guilt in accordance with the law that the Court will give them and instruct them in the matters before the Court? Do you understand that?

MR. NELSON: Yes.

THE COURT: Do you understand that you have a right to a jury or you have a right to waive that jury? Do you understand that?

MR. NELSON: Yes

THE COURT: And Mr. Watts, do you understand that you have a right to a jury trial? Do you understand that?

MR. WATTS: Yes, sir.

THE COURT: And have you read this jury waiver?

MR. WATTS: Yes.

THE COURT: Have you read it where you say, I the undersigned do hereby waive the jury and submit the cause to the Court? Do you understand that?

MR. WATTS: Yes.

THE COURT: You want the Court to hear this matter, and you are waiving the jury?

MR. WATTS: I want a bench trial.

THE COURT: You want a bench trial?

MR. WATTS: Yes.

THE COURT: You understand that when you take a bench trial you waive your jury? Do you understand that?

MR. WATTS: Yes.

THE COURT: All right. Let the record show that the defendant, Mr. Victor Watts, has executed a jury waiver in the presence of his counsel.

And you, Mr. Williams, do you know what a jury trial is? I just explained it to Mr. Nelson and Mr. Watts.

MR. WILLIAMS: Yes.

THE COURT: And you know that a jury trial is 12 people sitting in the box who will determine your innocence or guilt? You understand that?

MR. WILLIAMS: Yes.

THE COURT: And you know that you have this right, or you have the right to have the court hear your case? Which do you wish?

MR. WILLIAMS: Bench.

THE COURT: Have you read the jury waiver, which states, I, the undersigned, do hereby waive a jury trial and submit the above entitled cause to the Court. Have you read that?

MR. WILLIAMS: Yes.

THE COURT: Do you understand it?

MR. WILLIAMS: Yes.

THE COURT: Let the record show that Mr. Williams has executed a jury waiver.

Let the record reflect that the defendants in open court accompanied by their counsel have executed jury waivers and they thereby waive their rights to a jury trial.

II

The right to trial by jury guaranteed by the sixth amendment, being fundamental to the American concept of justice, is applicable to the states through the due process clause of the fourteenth amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Because this right is fundamental, it is not to be dispensed with routinely. This much was established by Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), where the Court first indicated that the jury right could only be waived by a conscious and deliberate decision of the defendant himself.

Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses. In such cases the value and appropriateness of jury trial have been established by long experience, and are not now to be denied. Not only must the right of the accused to a trial by a constitutional jury be jealously preserved, but the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.

Accord, Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 1712-13, 23 L.Ed.2d 274 (1969). Thus Patton cautions trial courts to take care to ensure that waivers of the right to jury trial are "express and intelligent".

The care demanded by Patton must be coupled with the high standard for waiver of a constitutional right which has been required and applied by the Supreme Court. The Court has made it clear that waiver of a constitutional right is not to be readily found: a strong showing is required to establish such a waiver.

It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that "we do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment of a known right or privilege. Johnson v. Zerbst, 304 U.S. 458, 464 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (footnotes omitted) (quoting Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 393 57 S.Ct. 809, 81 L.Ed. 1177 (1937) and Hodges v. Easton, 106 U.S. 408, 412 1 S.Ct. 307, 310, 27 L.Ed. 169 (1882)).

The waiver standard formulated in Johnson v. Zerbst¹ governs waiver of the right to trial by jury. See Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854 (1973); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418 (1969); Adams v. United States ex rel. McCann, 317 U.S. 269, 275-78, 63 S.Ct. 236, 240-41, 87 L.Ed. 268 (1942).

As it has evolved, the waiver standard of Johnson v. Zerbst has developed at least two components. A waiver must be both voluntary in the sense of freely made, and it must be intelligent, in the sense of having knowledge of its nature and effect. "Waivers of constitutional rights must not only be voluntary, but must also be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). The Constitution is violated, and relief under § 2254 is available, unless a waiver is the product of a voluntary and intelligent act of the defendant himself. The fact that the defendant is represented by counsel who waives his right to a jury trial is insufficient; the defendant himself must make a voluntary and intelligent decision to waive. See Schneckloth v. Bustamonte, 412 U.S. 218, 235-40, 93 S.Ct. 2041, 2051-54, 36 L.Ed.2d 854 (1973); Tollett v. Henderson, 411 U.S. 258, 265, 93 S.Ct. 1602, 1607, 36 L.Ed.2d 235 (1973); Adams v. United States ex rel. McCann, 317 U.S. 269, 275-78, 63 S.Ct. 236, 240-41, 87 L.Ed. 268 (1942); United States v. David, 511 F.2d 355, 360 (D.C. Cir. 1975); Government of the Virgin Islands v. Parrott, 476 F.2d 1058, 1061 (3d Cir.), cert. denied, 414 U.S. 871, 94 S.Ct. 97, 38 L.Ed.2d 90 (1973); Estrada v. United States, 457 F.2d 255, 256 (7th Cir. 1972); United States v. Radford, 452 F.2d 332, 334 (7th Cir. 1971); Chalk v....