Want to see a judge’s head spin? Demand a jury trial. Wait to the morning of the trial when 15 to 20 jurors are at the courthouse, then file a motion waiving the jury. This is known as a “zero jury day” and judge’s absolutely hate it.
Today the Appeals Court published a slip opinion that found a district court judge did not abuse her discretion by denying a defendant’s jury waiver on the morning of trial.
The defendant, charged with assault and battery, had rescheduled his trial a number of time. On the morning of his May 2, 2023 jury trial, he filed a motion asking to waive the jury and have the case heard by a judge alone.
This was the judge’s (somewhat comical) response:
All right, so this matter is [on] for jury trial today, and we have [sixteen] jurors upstairs. We did have a trial readiness conference on Friday where it was indicated there was a request to continue that was denied. And it was asserted that this would be a jury trial today. Therefore, we brought in jurors. There’s a waiver filed, but it’s a jury trial, counsel, so I would ask for you to go jury today. I’ll also say for the record, the case is three years old. It’s ancient, and even the docket is kind of falling apart from age. It’s ancient by District Court standards, and a decision to go jury waived could have been made any time before today and was not. So it will be a jury trial.
The jury was paneled. The trial took place and the defendant was convicted.
His attorney appealed arguing that the judge abused her discretion by denying the jury waiver. Citing Commonwealth v. Gebo, the attorney argued that a judge could not deny a jury waiver motion based on timing alone. Instead, there must be some other “good and sufficient reason” for the denial.
The Appeals Court seemed to concur with this reading of the case law. But the justices found that the judge did in fact have good reason to deny the motion:
In the present case, the defendant argues that the judge did what Gebo prohibits by denying his jury waiver based on timing alone. The judge here, like the judge in Gebo, did express frustration about the timing of the defendant’s waiver; were that the only reason the judge gave for her decision, we would agree that she abused her discretion in denying the waiver. Here, however, we discern objective circumstances, apart from the timing of [the] defendant’s request, that supported the judge’s decision. Specifically, we recognize the judge’s concern that the defendant was misusing the jury waiver to postpone his trial date.
Accordingly, the conviction was affirmed. The full text of the opinion is attached below.