United States District Court, Northern District of Illinois, E.D
April 18, 1975
UNITED STATES OF AMERICA EX REL. MIGUEL BAEZ, PETITIONER,
THE CIRCUIT COURT OF COOK COUNTY, MUNICIPAL DIVISION, FIRST MUNICIPAL DISTRICT, AND ALLYN R. SIELAFF, DIRECTOR OF THE STATE OF ILLINOIS, DEPARTMENT OF CORRECTIONS, RESPONDENTS.
The opinion of the court was delivered by: Marovitz, District Judge.
Application for a Writ of Habeas Corpus
Petitioner Baez, presently detained on bond and awaiting
incarceration in Vandalia Correctional Center, seeks a writ of
habeas corpus on the grounds that he did not knowingly and
intelligently relinquish his rights to a trial by jury. Baez is
in custody pursuant to a judgment and sentence of nine months
imposed on May 16, 1973, after conviction in the Circuit Court of
Cook County of the crimes of unlawful use of weapons, failure to
possess a firearm owner's identification card, and defacing
firearm identification marks.
On May 16, 1973, Baez appeared, without counsel, before the
Honorable Anthony Bosco in Branch 27 of the First Municipal
District of Cook County, Illinois. Judge Bosco found petitioner
to be indigent, appointed the Public Defender to represent Baez,
and passed the case until later that day. When the case was
recalled the following conversation ensued:
THE CLERK: Miguel Baez.
THE COURT: All right is the defendant ready for
ASSISTANT PUBLIC DEFENDER: Defendant is ready and a
Motion to Suppress, Judge.
THE COURT: State going to be ready?
ASSISTANT STATE'S ATTORNEY: Mr. Baez, yes, State is
going to be ready.
THE COURT: Plea of not guilty?
ASSISTANT PUBLIC DEFENDER: Not guilty, Jury waived.
THE COURT: Motion to Suppress?
ASSISTANT PUBLIC DEFENDER: Yes. (R. 3-4)
Allen Goldberg, the Assistant Public Defender who represented
Mr. Baez, has submitted an affidavit which states in part:
Also on May 16, 1973, I had numerous cases to prepare
and could only devote about ten or fifteen minutes
discussion with the defendant, and therefore could
not conduct a thorough inquiry of him as to his past
criminal history. Also when I felt he had no prior
criminal history and having very little time to talk
with him, I, realistically, did not advise him of his
right to a jury trial or plea bargaining where I felt
that even if he was found guilty he would receive
Mr. Baez, too, has submitted an affidavit which states, in part:
4. At no time did Mr. Goldberg advise me that I had a
right to a jury trial. I do not recall the word
"jury" ever being mentioned.
5. I did not know I had a right to jury trial.
In addition, the record discloses as fact that the trial court
never personally informed petitioner Baez of his right to a trial
The classic definition of a waiver was enunciated in Johnson v.
Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461
(1938) — "an intentional relinquishment or abandonment of a known
right or privilege." This standard has most often been applied to
test the validity of a waiver of counsel, either at trial, or
upon a guilty plea. Recently, the Supreme Court reaffirmed that
this standard also applies "to assess the effectiveness of a
waiver of other trial rights such as the right to confrontation,
to a jury trial, and to a speedy trial, and the right to be free
from twice being placed in jeopardy. (footnotes omitted)
(emphasis added)." Schneckcloth v. Bustamonte, 412 U.S. 218,
237-238, 93 S.Ct. 2041, 2053, 36 L.Ed.2d 854.
Respondent has suggested, by way of brief, that in Illinois the
attorney stands as agent for the client, and petitioner's failure
to object to a waiver of his rights by his attorney binds
petitioner to his attorney's actions. People v. Sailor, 43 Ill.2d 256,
253 N.E.2d 397 (1969). Such a principle is clearly alien to
the explicit dictates of the Supreme Court.
In Fay v. Noia, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d
837 (1963), the Court stated with regard to the waiver standard:
At all events we wish it clearly understood that the
standard here put forth depends on the considered
choice of the petitioner (citations omitted). A
choice made by counsel not participated in by the
petitioner does not automatically bar relief.
The Court has further said, at least with regard to waiver of
right to counsel and voluntariness of a guilty plea, "Presuming
waiver from a silent record is impermissible." Carnley v.
Cochran, 369 U.S. 506
, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70
(1962); Boykin v. Alabama, 395 U.S. 238
, 242, 89 S.Ct. 1709, 23
L.Ed.2d 274 (1969). It is fair to assume that this impermissible
presumption applies to waiver of a jury trial and other
safeguards of a fair criminal trial.
Finally, we note the Supreme Court's language in Schneckcloth,
supra, 412 U.S. at 236-237, 93 S.Ct. 2041, to the effect that the
heavy burden of proving waiver rests on the government.
It is clear that the State has not met its heavy burden of
showing an intentional relinquishment of a known right; the
failure of the presiding judge to advise petitioner of his
constitutional rights, in conjunction with the affidavit
submitted by the Assistant Public Defender and by Mr. Baez, all
tend to prove otherwise.
In light of our conclusion that defendant did not receive a
trial which complied in all respects with due process
requirements, we remand this case to Branch 27 of the First
Municipal District of Cook County to give the State an
opportunity to re-prosecute this case. Arrangements for a new
trial shall be completed within 45 days, and in default thereof
petitioner shall be released from custody and his convictions in
this case reversed.
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