Jury trial waiver must be knowing and on the record

Washburn student intern Christopher Mann and I won in State v. Frye, No. 101,292 (Kan. May 4, 2012), obtaining a new trial in a Riley County aggravated battery prosecution.  Here are the procedural facts set out by the KSC:

Frye was bound over for trial on a count of level 4 aggravated battery. At the arraignment 6 days later, Frye requested a "jury trial setting," and the court set a pretrial conference for May 19, 2008.

The record is silent as to what happened in the case thereafter, until the district court conducted a bench trial on May 30, 2008. The only explanation as to why the case was tried to the bench is the prosecutor's statement, at the beginning of the bench trial, that defense counsel "and her client have signed a waiver of jury trial that was originally scheduled at this time," and the prosecutor's later statement that he "thought this was going to be a jury trial until late yesterday afternoon." The transcript does not reflect that the trial court advised Frye of his right to a jury trial or made any further inquiry into the purported waiver. Likewise, the record contains no defense objection to the bench trial.

The COA had reversed (blogged about here) based on an insufficient jury trial waiver.  The KSC, following long-standing precedent, agreed:

The State contends that Frye did effect a waiver through the handwritten document filed with the court. That document is in the record on appeal and, quite frankly, it raises more questions than it answers. First, it is not dated. We cannot rule out the possibility that Frye executed the waiver when he was charged with a misdemeanor and not constitutionally entitled to a jury trial. In that event, the waiver would have been ineffectual, or at least unnecessary, when executed.

. . .

Notwithstanding the efficacy of the handwritten waiver, however, the State fails to clear the Irving hurdle that requires that the written waiver be after the defendant is "advised by the court of his right to a jury trial." (Emphasis added.) 216 Kan. at 590. There is absolutely nothing in the record indicating that the district court made any attempt to advise Frye of the nature and extent of his constitutional right to a trial by jury.

So the KSC reversed the conviction and remanded for a new trial.