Sunday, January 28, 2007

Defendant Can't Insist on Bench Trial

The trial court granted defendants' motion for a bench trial over the government's objection. The government then went to the Ninth Circuit, seeking -- and getting -- an order of mandamus to compel a jury trial. United States v. United State District Court for the Eastern District of California, 464 F.3d 1065 (9th Cir. Oct. 3, 2006) (per curiam), 9th Cir. link.

The four defendants were charged with acts involving interstate travel and about ten years of ritual sexual abuse of their children. (One couple lived in California, the other in Texas.) They moved for a bench trial because the molestation was so horrific that no jury could fairly consider their argument that the government could not prove knowledge and intent at the time the children were sent from state to state. When the judge granted the motion, he said:

I know I can give both sides a fair trial, if this is a court trial. I do not know that I can rule correctly on every one of the evidentiary objections that might be deemed to deny defendants a fair trial if we have a jury.
The Ninth Circuit panel, though, was "left with 'the definite and firm conviction that a mistake has been committed.'" Id. at 1071. The panel was "confident that the able and experienced trial judge is fully capable of ensuring these defendants an impartial trial" -- and offered suggestions for doing so, including extensive voir dire and limiting "bad acts" evidence, cumulative evidence, and the number of witnesses.

Mr. Harrod has already been convicted of 32 counts of sexual abuse in state court, affirmed on appeal. People v. Harrod, 2006 WL 3366146 (Cal. App. Nov. 21, 2006). For more about him, see The patriarch, polygamy and power, Sacramento News & Review, May 29, 2003.

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