Bailiff: SJC-13203, Commonwealth v. Elizabeth Gebo.
-: Okay, Attorney Roumeliotis.
-: Okay, thank you.
My name is Chrisoula Roumeliotis.
I represent Elizabeth Gebo in this case.
So I want to start by just going over
a few of the things that happened here.
As I'm sure you know, what, the main issue here
is her request for a jury waiver.
She requested a jury waiver right before a jury,
right before the trial was going to begin,
on the day that trial was supposed to start.
Her request was proper.
It was timely, and it was done according
to the relevant rules that apply here.
Chapter 263, section six says, you know,
you can waive a jury trial, as long as it's done
before the jury is empaneled.
Rule 10 of the supplemental rules of criminal procedure
that apply to the district rules similarly say that
a defendant shall decide whether she'll waive the right
to a jury trial no later than the commencement of trial.
That's what she did here.
Trial hadn't begun.
The jury had not yet been empaneled and she decided
that she wanted to waive jury trial.
Her request was denied and that denial was improper.
In order to deny her request at that time,
Rule 19 clearly says that a good
or sufficient reason needs to be given.
That wasn't done here.
Instead, what happened is that the judge shifted
the burden to her, asking her to provide
good cause for her request.
She didn't need to do that.
She made the request.
Her request was timely, it was properly done.
So the judge needed to come up with a good
and sufficient reason to deny it if denial was appropriate.
-: Why is not the appearance of judge shopping
a good and sufficient reason?
-: I don't see how it could be
in this situation for a few reasons.
The rules allow a waiver up until the time
where she waived it, where she requested it,
up until the jury is empaneled.
At that time the, who the judge is going
to be known to the defendant.
So it's, the rules are indicating that you can do this.
A defendant can do this and to then say, well, actually,
you know, we're concerned about judge shopping,
but the rules are allowing you to do this any way seems.
-: Well, the rule doesn't actually say
judge shopping is okay.
The rule is about timing.
My question to you is, why isn't that appearance
of judge shopping a good and sufficient reason?
There's all sorts of literature that says
that judge shopping sort of undermines the public confidence
in what we do and why isn't that enough reason,
good and sufficient to say, you know, in this case
you're judge shopping and that's not good enough.
Even though the time was okay, the only reason
you're sticking with the judge is because you've got me.
-: Okay, well two things.
There is no indication that she was judge shopping here.
If we're looking at judge, there's no indication
that she sought out a particular judge.
There's no indication that she did anything to get herself
before Judge Hadley in this case.
Moreover, what the judge says was is that there's.
-: But isn't there an indication that what she did
was wait and see, right?
So, you know, at the time of the, prior to election,
I don't know yet.
Now I know.
I really like this judge, and so I'm going
to go with that judge.
Why isn't that wait and see strategy supported by the record
and a good and sufficient reason for that judge to say,
no, not on my watch.
We're not doing that.
It's undermining the whole system.
-: Well, the judge also said that his concern
was to avoid the appearance of judge shopping,
not that he believed that it actually happened here,
not that there was actual judge shopping,
but that there's a con, that he wanted to avoid
the appearance or inkling and so.
-: But counsel, counsel, isn't that the point?
The point is the appearance,
not the actual judge shopping, right?
Isn't that the point of the whole concept?
-: And wouldn't that be to a situation where any time
a defendant wishes to waive a jury trial at this point,
you know, the day that trial was to begin,
a judge can say no, which means that
that ability is pretty much thrown out the window.
Why give the defendant that right to be able
to waive a jury trial at this point if that can be given
as a valid reason without any specific, you know,
idea that this particular defendant was judge shopping?
Any judge can then say that as a reason and it's.
-: I'm sorry, counsel, what do we make of the district court
rules, four and five, that compel as long
as discovery is complete, the election of jury, non-jury?
-: I view that as, as consistent with the other rules.
I see that as saying, here's a starting point.
You know, we have, discovery's complete.
We have a pretrial conference.
This is the point where the defendant's decision
can be compelled.
Prior to that, you know, you can't ask her,
do you want to waive your jury trial?
At this point you can, but it's not the end point.
There's still another time where she can make that decision,
and that other time is before the jury actually,
the jury trial actually begins,
before the jury is impaneled.
It isn't just, you know, there's only this one time.
It's a starting point, but it's not the ending point.
-: You're reading no inconsistency between
the district court rule and the statute.
-: I don't, no.
I see that.
I see, you know, I see how they re, they can all apply.
I don't see.
-: It spells out, waiver shall not be denied if the waiver
is filed before the case is transferred for jury trial
or the appropriate jury session,
in combination with Chapter 263, section 5(a) says that
a waiver can happen with the consent of the court,
and then Rule 19 that again can be a refusal
for good and sufficient reason, and we know that
the judge can't engage in colloquy as perhaps happened here
as to the mental thought process
of the lawyer or the defendant.
So the judge is going to have to look
at the overall circumstance and decide whether or not
it seems to that judge reasonably to be judge shopping.
-: Sure, and I don't view that as a good
or sufficient reason in this case.
I don't see how the, I don't understand.
It does not make sense to me that that could be offered
as a good and sufficient reason in this type of situation
for the reason I indicated before, that it can be applied
any time a defendant seeks a jury waiver at this time.
The judge can say, concerned about
the appearance of judge shopping, denied,
and at that point it can happen in every single case,
and because you can always then make the argument,
well, this defendant was waiting to see who the judge
was gonna be on the day of trial, and then she went
and asked for a jury waiver.
Well, no, we're concerned about that.
I don't mean to diminish the concern
of judge shopping at all.
What I'm saying is I don't see how that in and of itself
can be a good and sufficient reason here,
because it's essentially saying to defendants,
don't bother, you know, don't bother trying to waive
your jury trial at this point because you can, the judge
will just, can just easily say, no, judge shopping.
You know, this is not, don't do it now.
-: Counsel, I couldn't tell this from the record,
but I'd like to follow up on two things.
How many trial sessions were there?
I couldn't find that in the record because it speaks
to the point of Justice Wendlandt and Justice Lowy,
because it's not what you're just saying,
because what I, my experience is the list is called
in one case in one session, and the case is sent out
to the other session for trial.
Now, if a defendant is in answering in the trial session
and they say, yeah, we want a jury trial,
and the case is sent over to the other session
for a jury trial, and lo and behold,
there's a judge that we happen to like.
Now, all of a sudden, everybody wants to waive.
Why isn't that a good and sufficient reason?
And I'm saying that because I don't know
the circumstances of this case, that this didn't happen,
that the case was called in another session,
and it was sent to this judge, and now all of a sudden,
somebody who wanted a jury trial now all of a sudden
wants to waive and go jury waived,
and why isn't that a good and sufficient reason?
Because that happens all the time.
-: I don't have any information from the record that
that is what happened here.
My understanding is that it was called on that day,
which I believe was January 29th or 30th now,
and that it is on that same day that she made her request,
that there wasn't any, you know, previous day
where she had some time to think about, oh,
we're gonna go in front of a different judge now,
or now I know who the judge is.
Let me, you know, change my plan here,
that it was on that particular day where she suddenly
found herself in front of this judge and it,
for her, it wasn't because of who the judge was.
She did not believe that the case was going to go to trial,
and just wanted at that point to have a bench trial.
-: Well, I don't know that the record supports that,
because I thought at the trial readiness conference
there was a discussion about whether or not
there'd be a marital privilege invoked here,
and the Commonwealth said to the court, no, no,
the complaining witness here is onboard
and is going to testify.
So how could that have been that there wasn't
this expectation that the day of trial, it was gonna go?
-: I don't have any more information about that
to speak to that at the moment.
-: So what, are you saying that we need the judge
to make findings on judge shopping for good
and sufficient reason because the district court judge
or the BMC judge, he or she knows the courthouse
and knows the courtroom, going to Justice Georges' point,
and if you're playing inside baseball, because you're wired,
or you can afford to have a lawyer show up
as many times as you want the lawyer to show up,
you can just wait and you could wait until you know
that you're going to get sent out to the right session
and then take out that jury waiver and that just,
that's just inherent unfairness.
-: Sure, and I think that in order to,
for fairness to the defendant and to allow some means
of review of decisions that are made,
something needs to be indicated or said.
Do I think that there need to be specific,
long listed findings on the record?
I think there needs to be some concrete information
as to what is leading the judge to make that decision,
you know, because otherwise there's nothing left.
There's no meaningful review of that judge's decision.
Otherwise we're just, you know, there does not seem to me
to be any meaningful review for the defendant for what
happened in her situation.
-: What is our standard or review for a finding
of good and sufficient reason?
Is it clear error, is it discretion?
What are we looking at?
It's not de novo,
or is that your position?
You're trying to figure out your position.
-: I think it's more of an, you know, whether the judge
abused his discretion in his decision, you know, whether.
I would go with that.
Wendlandt: Thank you.
That's helpful.
-: Okay.
-: Counsel, before your time runs out, could you just
address the issue of, there's no Constitutional right
to a bench trial, so why is it
that the verdict can't stand here?
-: And this is where, this is probably the toughest part
of the argument here is to, how do you show
prejudice in this case?
You know, I submit that the review is prejudicial error.
You know, as you obviously know, I believe that
there was error made here in the way the judge found that,
in the way the judge denied the request for waiver,
that there was error.
So the next question is, was that error prejudicial?
I believe it was and I believe it was prejudicial,
not just because she wanted something, she didn't get it.
Therefore there's prejudice.
I think there's a bigger context in her situation.
She wanted a bench trial because of
the circumstances of her case.
I'm confident that, you know the facts of this case.
Two older folks, alleged, you know, alleged assault, chair,
beating with a chair and a ladle.
I mean, it was a pretty awful, an ugly situation.
She wanted to go in front of a judge because she believed
that she would have a better result.
It was a heightened, emotional type of situation.
I think that looking at that circumstance,
I think you could, I view that her,
the prejudice came from the denial within that set of facts.
I'm not arguing that this should be structural error.
I understand that it's a prejudicial error review.
I also am very concerned with what happens if there is no,
I'm sorry, I just lost my train of thought, I apologize.
-: I'm confused though, by that, because that's,
so it's an emotional case and judges are gonna be
better able to handle an emotional, you know,
be able to sift through the emotions than a jury.
I'm just trying to figure out how we,
I understand how to apply structural error,
and I normally understand how to apply prejudicial error,
but this is, you've lost your tactical choice, but.
-: And right, she's still got a jury trial.
I'm not even arguing that there was, that the jury
was in any way specifically prejudiced.
I mean, you see that I did not argue that.
My concern is what happens when there's no ability
to review this otherwise, because if in this situation
you can't show prejudice, if.
-: And I'm just trying to figure out,
is there something we can turn to if we accept
your argument that, is there case law, something instructive
to us on how to evaluate basically,
the prejudice of an emotional case going to a jury,
is essentially what you're saying, right.
-: Right.
Kafker: Is there something we can look at, like case law?
-: I do not have anything more than what
I have already put in my brief, yeah.
-: You know, but counsel, even if that were the reason,
wouldn't they know that well before
this point in the proceedings?
-: Wouldn't the defendant have known that?
-: Yeah, that they were concerned about emotions,
so they would ask for the jury waiver early?
Was it timely, in a timely manner?
-: But it was timely.
I, the Commonwealth and I, I think
completely disagree on this point.
Her request was completely timely.
The rules allow it.
There was nothing untimely.
It wasn't late.
It was later than, you know, doing it earlier,
but it wasn't late in any problematic manner.
It was perfectly timely.
Otherwise, why do the rules allow for this
if we don't want this?
I mean, if this is not how jury waiver should happen,
then there, that's not what the rules instruct.
-: Well, I think what we're going to hear is that,
that the Commonwealth is going to say that
you just look at the BMC and district court rules
and say consent to said waiver shall not be denied if,
and the if is, if it's filed before the case
was transferred to the appropriate jury session
or for jury trial, I think that's what they're going to say.
-: Sure, and I'm not arguing that consent
was automatically required here.
The part of the rule that you're reading is what
the situation is where a judge can't say no to the request,
but the rules also say that, I mean, rule 10
of the district court rules say in a jury session,
the defendant shall decide whether she'll waive the right
no later than the commencement of trial.
Section GL 263 indicates the same as long
as it's done before jury is empaneled.
That's where there's, yeah, the judge can say yes or no.
Prior to that, if the defendant here had requested
jury waiver back at the end of the pretrial conference,
or after discovery had finally been completed,
we wouldn't be here.
The judge would have had to say yes,
but she had the option to ask later
without that being problematic.
The rules give her that right to ask later.
So unless there's any other questions,
I'm going to leave issue two on my brief,
and I thank you for your time.
-: Thank you very much.
Attorney Wendel.
-: Yes, good morning, and may it please the court.
Assistant district attorney John Wendel
for the Commonwealth.
I'd like to start with that subject of,
I believe it was brought up by Justice Lowy,
is there inconsistency between the rules and the statute?
I would suggest there actually is.
There's an inconsistency between Chapter 263, Section Six,
and Rule 19 of the rules of criminal procedure,
because Section Six does not require the court
to give any reason at all for its denial of its requests.
All Section Six says is, once it's been transferred
to the jury session, the judge is allowed to deny
the request, or rather it says in the district court,
a judge isn't allowed to deny the request
until it's been sent to the jury session
and there's ample case law that yes, the judge is absolutely
allowed to deny a request at the trial session,
at the jury trial session.
So I would suggest that there is actually some inconsistency
between Rule 19 and Section Six to me.
Where it's made consistent again is in
the supplemental rules, which require the defendant to pick
prior to being sent out.
They do in fact require the defendant to pick,
provided that discovery is complete.
Now, yes, the rules do also permit the defendant
to request waiver at a later time up to the beginning
of jury empanelment, but Section Six
permits the judge to deny that.
The defendant has the right to request,
but the judge has the right to refuse.
So I would suggest that as far as the Rule 19 requirement
that the judge give good cause, the statement,
you're too late because I'm at the point where
I'm now allowed to refuse is a sufficient cause to say,
you now have to give me a reason.
I would suggest that that's entirely appropriate
on the part of the judge.
Even if it's not, the judge here said, we need to avoid
the appearance of judge shopping.
Now the defendant says, oh, there's no judge shopping here,
and technically in the strictest sense, maybe not
because the defendant did nothing overt to end up
in front of this judge, but as Justice Cypher put it,
this is very much a case where it could be wait and see,
and the Appeals Court said, you know, oh, there are,
but they're allowed to take the judge's identity
into account because they're allowed to waive
up to the beginning of trial.
I would respectfully disagree with that.
I would say that if they're taking.
-: The Appeals Court says this isn't judge shopping,
although they don't cite anything,
but they're pretty emphatic that this doesn't rise
to the level of judge shopping or even
the appearance of judge shopping.
What's your response to that?
-: My response to that is that the only evidence we have
as to whether it is or isn't is that the defense attorney
said there isn't, but the judge is
not required to believe that.
So if the.
-: Well, and the Commonwealth also, right,
am I remembering correctly, the Commonwealth also
doesn't think it's judge shopping.
-: I don't know that I would say that so much
as I would say the Commonwealth doesn't object.
-: I think they'd object if it were.
-: I, perhaps.
That's a reasonable inference to draw,
but it might also simply be that my colleague
was interested in getting the case over
with as quickly as possible.
-: Well, counsel, if I may, it's a little difficult sometimes
for an assistant DA to object or to enter into
any discussion of what a judge is or isn't when the defense
is making a strategic choice.
-: That is a very good point, Your Honor, yes.
In any case, what the Appeals Court said, they said,
this is not judge shopping in the sense that we are talking
about judge shopping, which the Appeals Court
was talking about making overt efforts to get
in front of a particular judge.
They said, it's not that.
Fair enough, but then they had a footnote in which
they said, well, but it may be the judge meant,
taking the judge's identity into account
in making the decision, and the Appeals Court said,
if you're only doing it based on the judge's identity,
that's improper, but if you're taking that into account,
that's fine, and I disagree with that because what they.
-: Just to clarify what I read in the Appeals Court,
there was no manipulation of procedure evident in the record
that the defendant engaged in ergo,
it was not judge shopping.
Judge shopping does not include wait and see.
-: Right.
Well, they did however, they put a footnote.
It begins,
"the judge may have used the term 'judge shopping' to mean
"that the defendant was choosing to waive trial by jury
"because of the identity of the trial judge."
That's footnote nine, I apologize,
I forget the specific page, and then they say,
we agree that you're not allowed to base your decision
solely on the identity of the judge.
That's improper.
They cited to a working group report and they say,
however, the sentence should not be read to mean,
the sentence from the working group report,
should not be read to mean that the defendant can waive
the right to a trial by jury only when he or she remains
in a state of ignorance as to who the trial judge might be.
Not only would such a reading be impractical,
its application would run a foul of Section Six,
and they go on to say that essentially there,
a defendant is allowed to take the judge's identity
into account, and I disagree with that assessment
because yes, Section Six allows waiver
up to the point of jury empanelment,
but it also allows the judge to refuse
if the judge concludes that oh, you're taking
my identity into account at all.
That's improper, so I refuse.
I think a judge is allowed to do that, to say,
no, you are not permitted to take my identity into account.
So the Appeals Court essentially said, well, of course,
you know, they're allowed to take
the judge's identity into account.
No, they're not and so it's essentially,
I would say if the tactical decision is,
I think I would do better in front of a judge, that's fine.
Then if that's what the defendant believes,
then the defendant should reasonably be able
to say that at the time required
by the district court supplemental rules.
If the statement is, I believe I would do better
in front of this judge, that's improper,
and the request for waiver should be denied,
and in any case, whether this is error or not,
I would submit that it doesn't matter because there
was no prejudice to the defendant here.
I would actually argue that it's impossible
to show prejudice after conviction in a.
-: Does that help you or hurt you then,
'cause if it's impossible to show prejudice,
then we're kind of entering into a game that, you know,
rather than doing, I mean, I'm not sure.
So if someone, if a judge improperly denies it, you know,
and you can't show prejudice, where does that take us?
-: Oh, it takes us, and with apologies to this court,
it takes us to Chapter 211, Section Three, Your Honor.
This I would say is very much like bail that there,
the point becomes moot after conviction.
So there is no adequate alternative remedy
available after conviction in the ordinary courts of appeal.
So that leads to petitions to this court for.
-: I'm confused then.
So a judge improperly denies a waiver.
I know you say that doesn't happen here,
and then the, they're forced to a jury,
they get convicted, tough luck to you, right?
There's no remedy.
That doesn't sound good.
-: Well, but Your Honor, it's, the judge improperly
denies waiver, what the defendant should do in that moment
is request the stay of proceedings to file a petition
for extraordinary relief, because to put it simply,
there can't be prejudice under the prejudicial error
standard, and it can't be a structural error
because it's, there is no Constitutional right.
-: So you're saying basically,
so basically unless they quote, run to the SJC
for 211 relief, you're out of luck.
-: Essentially, Your Honor, yes, because it has to be
reviewed under the prejudicial error standard
for the simple reason that there is no Constitutional right
to waive your Constitutional right to a jury trial.
There is no Constitutional right
to be tried by just a judge.
So it is a statutory claim.
It is preserved very clearly.
So it therefore must be reviewed
under the prejudicial error standard.
It can't be a structural error because structural errors
are by definition Constitutional.
So we're dealing with the prejudicial error standard,
which is reversal unless it did not influence the jury
or had but very slight effect, and of course there are cases
which take that particular standard and make it very clear
what we're talking about did not influence
the jury in their verdict.
So unless the defendant can show that the verdict
would actually have been different simply because the case
was tried by a judge, as opposed to by a jury,
there is no prejudice, and the defendant concedes here
that she can't prove that there was actually
any substantive difference in the verdict,
but I don't, to be blunt, I don't think any defendant
ever can because essentially the only way there could be
a difference simply by being tried by a judge,
as opposed to simply being tried by a jury,
same trial, other ways, and in all the other ways,
the only way there can actually be any difference
is if either the judge was incapable of fairly
and impartially trying the case simply because he's trying
it as a judge, or a jury is incapable of fairly
and impartially trying the case simply
because they're a jury, and the whole system falls apart
at that point, because we have,
what we have here, the defendant received a trial
by a fair and impartial jury.
The jury was appropriately instructed to decide the case
without regard for emotion, sympathy,
personal likes or dislikes.
There's actually evidence on the record
that there were concerns raised about juror sympathy
and those concerns were addressed adequately,
in that one of the jurors, it was suggested,
might be overly sympathetic to the defendant,
and that juror was brought before the judge
and flatly and forcefully denied that claim.
So the jury tried this case fairly and impartially
with appropriate instruction on how to handle
the emotional aspects of the case.
The judge, we can assume, would have tried the case
fairly and impartially, properly instructing himself
on how to handle the emotional aspects of the case.
So the defendant gets the same thing, whether she gets it
from the judge or gets it from the jury,
and that's true of essentially anything.
All of the cases that talk about the judge
could ignore this, or a judge is easier,
no, sorry, more capable of handling this more easily,
those cases, they either speak about it being
a tactical decision to waive, which is to say,
it's not ineffective to recommend to a defendant,
you might want to waive your right to a jury trial here,
go in front of a judge.
It's a reasonable tactical decision,
or these cases talk about cases where the trial
is infected by error, and there's no error here
aside from hypothetically, the erroneous denial
of their requests.
This error is not in and of itself related to the prejudice
that a defendant might experience that a judge
would be able to ignore.
So fundamentally, no matter which issue is raised
as a possible way in which prejudice has shown,
they all come down to well, there's some other error.
Was that error prejudicial, and there is no error,
no prejudice simply by virtue of the fact
that the defendant was tried by a jury,
received their Constitutional right,
instead of being tried by a judge, which is to say,
waived their Constitutional rights voluntarily.
Any errors around waiver of Constitutional rights
that are prejudicial involve the waiver being involuntary,
and that's an obvious structural error
and is completely distinguishable from this case,
where the defendant received her jury trial.
So I see I'm running short on time.
If there are no further questions from the court,
I would also rest on my brief as to the issue
of the sufficiency of the evidence.
Thank you.