Friday, April 06, 2007

Client decides whether to waive jury trial

Christopher L. Hughes of Falk & Associates won in City of Wichita v. Bannon, No. 94,752 (Kan. App. April 6, 2007), reversing a municipal criminal trespass conviction due to ineffective assistance of counsel. Mr. Bannon's trial counsel had waived his right to jury trial without permission from Mr. Bannon. On direct appeal, Mr. Bannon framed his claim about waiver (or lack thereof) as ineffective assistance of counsel and the COA remanded for evidentiary hearing. After denial by the district court, the COA had little trouble finding that such a waiver constituted defecient performance. The COA went on to find that this is a type of error that is not subject to prejudice analysis--it is structural error. As a result, the conviction is reversed.

As an aside, in a felony case, waiver needs to be in writing or on the record, so theoretically this type of issue can be raised directly as a direct appeal, although if the record is not clear the appellate court has refused to reach it and remand would still be approriate.

[The city did not file a PR and the mandate issued on May 10, 2007]

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