Reginald Jells v. Ohio, 498 U.S. 1111 (1991)

498 U.S.
1111
111 S.Ct. 1020
112 L.Ed.2d 1101
Reginald JELLS, petitioner

v.
OHIO.
No. 90-6713.
Supreme Court of the United States

February 19, 1991
On petition for writ of Certiorari to the Supreme Court of Ohio.

Feb. 19, 1991. The petition for a writ of certiorari is denied.
Justice MARSHALL, dissenting.
The question in this case is whether petitioner's waiver of his right to a jury trial
was knowing and voluntary when there is no evidence that petitioner was aware
that his waiver also applied to his right to be sentenced by a jury that could not
impose death by less than a unanimous vote and without the trial judge's
independent agreement that death was the proper sentence. Because I believe
that petitioner could not be understood to have made a "knowing" decision
without such critical information, I would grant the petition for certiorari.
* The jury plays a vital role in Ohio's capital sentencing scheme. Under the
Ohio Rules of Criminal Procedure, a felony defendant who does not waive the
right to a jury trial is tried before a twelve-person jury. See Ohio Rule
Crim.Proc. 23(b) (1987). When the defendant is accused of a crime punishable
by death, the same jury presides at both the guilt phase and the penalty phase.
See State v. Mapes, 19 Ohio St.3d 108, 116, 484 N.E.2d 140, 147 (1985), cert.
denied, 476 U.S. 1178, 106 S.Ct. 2905, 90 L.Ed.2d 991 (1986); see also Ohio
Rev.Code Ann. 2929.03(C)(2)(b) (1987). Unless the jury unanimously finds
beyond reasonable doubt that death is the proper sentence, the defendant must
be sentenced to life imprisonment with parole eligibility after either twenty or
thirty years imprisonment. See Ohio Rev.Code Ann. 2929.03(D)(2) (1987);
see also State v. Jenkins, 15 Ohio St.3d 164, 200, 473 N.E.2d 264, 297 (1984),
cert. denied 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643 (1985).
Significantly, even if the jury unanimously recommends the death penalty, the
trial court also must independently find beyond reasonable doubt that death is
the correct sentence before the defendant may be sentenced to death. See Ohio
Rev.Code Ann. 2929.03(D)(2)-(3) (1987); see also State v. Jenkins, supra, 15
Ohio St.3d, at 200-201, 473 N.E.2d, at 297.
3
Petitioner was convicted of murder and sentenced to death in an Ohio state

court. Because petitioner waived his right to a jury trial, a three-judge panel
determined both his guilt and his sentence.1 The form on which petitioner
executed his waiver mirrored the language of Ohio Rev.Code Ann. 2945.05
(1987):
" 'I, REGINALD JELLS, the defendant in the above cause, hereby voluntarily
waive and relinquish my right to a trial by jury, and elect to be tried by three
judges of the court in which said cause may be pending. I fully understand that
under the laws of this State, I have a constitutional right to a trial by jury.' " 53
Ohio St.3d 22, 25, 559 N.E.2d 464, 468 (1990).
Petitioner signed the statement, as did his two witnessing attorneys. Ibid. The
trial court also conducted a hearing to determine whether petitioner signed the
form voluntarily:
" 'THE COURT: Reginald, is that your signature?
" 'THE DEFENDANT: Yes, it is, sir.
" 'THE COURT: You did this of your own free will?
" 'THE DEFENDANT: Yes, I did.
10
" 'THE COURT: Nobody forced you to do this?
11
" 'THE DEFENDANT: No, sir.
12
" 'THE COURT: All right.
13
" 'MR. HUBBARD [defense counsel]: I have witnessed signature, your Honor.
14
" 'THE COURT: This will be made part of the record.' " Ibid.
15
Petitioner maintains that his waiver was not constitutionally sufficient because
at no point did the trial judge advise him that by waiving his jury trial right he
also waived jury sentencing. The Ohio Supreme Court did not address the
sufficiency of petitioner's waiver under federal constitutional standards even
though it acknowledged that petitioner had claimed his waiver was
"constitutionally insufficient." See id., at 24, 559 N.E.2d, at 467. The court did
hold, however, that under Ohio law the trial court is not required to determine
whether a defendant "is fully apprised of the right to a jury trial," id., at 25-26,
559 N.E.2d, at 468, and that Ohio law is "satisfied by a written waiver, signed
by the defendant, filed with the court, and made in open court, after
arraignment and opportunity to consult with counsel," id., at 26, 559 N.E.2d, at
468. For these reasons, the court determined that the trial court's failure
specifically to advise petitioner of the effect of his waiver on sentencing gave
rise to "no error, plain or otherwise." Ibid.2
16
I cannot accept the Ohio court's conclusion. The Sixth Amendment guarantees
a criminal defendant the right to a trial by jury. While this right is subject to
waiver, "we 'do not presume acquiescence in the loss of fundamental rights,' "
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461
(1938) (citation omitted), and courts are therefore obliged to establish that any
such waivers are made knowingly and voluntarily, id., at 464-465, 58 S.Ct., at
1023-1024. It is generally accepted that waivers of certain constitutional rights
such as a waiver through a guilty plea of the right to trial or a waiver of the
right to counselshould be made in open court. See e.g., Brady v. United
States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970) (right to
trial); Johnson v. Zerbst, supra, 304 U.S., at 465, 58 S.Ct., at 1023 (right to
counsel). Because these rights are critical in protecting a defendant's life and
liberty, trial courts must apprise the defendant of the "relevant circumstances
and likely consequences," Brady v. United States, supra, 397 U.S., at 748, 90
S.Ct., at 1469 (emphasis added), to determine whether the defendant's waiver is
made freely and intelligently.
17
Some courts, believing that the Constitution does not compel an inquiry by the
trial judge when a defendant purports to waive his right to a jury trial, have
nevertheless recognized that "trial courts should conduct colloquies with the
defendant . . . [and] make sure that [the] defendant knows what the right
guarantees before waiving it." See United States v. Cochran, 770 F.2d 850, 852
(CA9 1985) (citing cases). In my view, when a capital defendant's waiver of his
jury trial right includes a waiver of his right to jury sentencing, this type of a
searching inquiry by the trial judge into the knowing and voluntary nature of
the waiver is not only sound practice but is constitutionally compelled.
18
The decision to waive the right to jury sentencing may deprive a capital
defendant of potentially life-saving advantages. As we have recognized, the
jury operates as an essential bulwark to "prevent oppression by the
Government." Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 1450, 20
L.Ed.2d 491 (1968). " '[O]ne of the most important functions any jury can
perform in making . . . a selection [between life imprisonment and death for a
defendant convicted in a capital case] is to maintain a link between
contemporary community values and the penal system.' " Gregg v. Georgia,
428 U.S. 153, 181, 96 S.Ct. 2909, 2928, 49 L.Ed.2d 859 (1976) (joint opinion
of Stewart, Powell, and STEVENS, JJ.), quoting Witherspoon v. Illinois, 391
U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775 n. 15, 20 L.Ed.2d 776 (1968). Indeed,
it has been argued that juries are less inclined to sentence a defendant to death
than are judges. See Spaziano v. Florida, 468 U.S. 447, 488 n. 34, 104 S.Ct.
3154, 3177 n. 34, 82 L.Ed.2d 340 (1984) (STEVENS, J., concurring in part and
dissenting in part), citing H. Zeisel, Some Data on Juror Attitudes Towards
Capital Punishment 37-50 (1968).
19
Under Ohio law, the consequences of a capital defendant's waiver are

particularly far-reaching. As noted, had petitioner not waived his jury trial right
in favor of the three-judge panel, his life would have been spared unless all
twelve jurors could have agreed that death was the proper sentence, and unless
the trial judge then independently determined that the jury reached the correct
result. The practical effect of petitioner's waiver, then, was to forfeit the right to
have ten additional decisionmakers review his punishmenteach of whom
would have had the power to veto his death sentence and some of whom might
well have been less likely to vote for the death sentence than the three judges
on the panel.
20
Given the consequences of petitioner's decision, the trial court's inquiry, which
focused only upon whether petitioner signed the boilerplate waiver form
voluntarily, was constitutionally inadequate. The court did not determine
whether petitioner fully understood his entitlement to a jury trialthat is,
whether he had signed the waiver "with sufficient awareness of the relevant
circumstances and likely consequences" of his act. See Brady v. United States,
supra, 397 U.S., at 748, 90 S.Ct., at 1468. Nor did the waiver itself cure this
defect, since it did no more than inform petitioner of his "constitutional right to
a trial by jury." 53 Ohio St.3d, at 25, 559 N.E.2d, at 468. It did not explain to
him that he also was waiving his right to be sentenced by a jury or that, in the
absence of a waiver, he could be sentenced to death only upon the jury's
unanimous vote and the independent approval of the trial judge.

21
It is no answer to assume, as did the Ohio Supreme Court, that petitioner's

"opportunity to consult with counsel," ibid., was an adequate substitute for a
full inquiry in open court. The Ohio Supreme Court made no effort to ascertain
whether counsel had even conferred with petitioner at all, or, if they did confer,
what petitioner was told. As I have noted before, courts cannot confidently
assume that defense counsel have apprised a capital defendant of the
considerations relevant to a decision to waive his right to a jury.
22
"A presumption that defendant's counsel will always inform him of the relevant
factors in a decision to waive constitutional rights amounts to a rule that all
waivers made after the defendant has retained counsel necessarily will be
considered voluntary, knowing, and intelligent. Such a rule offends common
sense and impermissibly strips a defendant of constitutional protections long
recognized by this Court." Robertson v. California, 493 U.S. 879, 881, 110
S.Ct. 216, 217, 107 L.Ed.2d 169 (1989) (MARSHALL, J., dissenting from
denial of certiorari).
23
Such casual presumptions not only have no place in matters of life and death
but also contravene "[t]he requirement that the prosecution spread on the
record the prerequisites of a valid waiver." Boykin v. Alabama, 395 U.S. 238,
242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969) (emphasis added). When a
defendant purports to waive a fundamental constitutional right, "it is the State
that has the burden of establishing a valid waiver." Michigan v. Jackson, 475
U.S. 625, 633, 106 S.Ct. 1404, 1409, 89 L.Ed.2d 631 (1986). Because the State
clearly has not met that burden in this case, I would grant the petition for
certiorari.
II
24
Adhering to my view that the death penalty is in all circumstances cruel and
unusual punishment prohibited by the Eighth and Fourteenth Amendments,
Gregg v. Georgia, 428 U.S. 153, 231, 96 S.Ct. 2909, 2973, 49 L.Ed.2d 859
(1976) (MARSHALL, J., dissenting), I would grant the petition for certiorari
and vacate petitioner's death sentence even if I did not believe this case
otherwise merited review.
Under Ohio law, a defendant who is accused of a crime punishable by death

and who waives his right to a jury trial is tried and sentenced by a three-judge
panel. See Ohio Rev.Code Ann. 2929.03(C)(2)(b), 2945.06 (1987). Ohio's

capital sentencing statute does not contain any provision whereby a capital
defendant can waive his right to a jury trial but nonetheless elect to be
sentenced by a jury.
2
Because the Ohio Supreme Court did not "actually . . . rel[y]" on a procedural
bar for disposing of petitioner's federal claim, see Caldwell v. Mississippi, 472
U.S. 320, 327, 105 S.Ct. 2633, 2638, 86 L.Ed.2d 231 (1985), our jurisdiction is
secure. Respondent does not contend that petitioner's federal claim is not
properly before us.

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498 U.S.

Reginald JELLS, petitioner

Supreme Court of the United States

On petition for writ of Certiorari to the Supreme Court of Ohio.

Petitioner was convicted of murder and sentenced to death in an Ohio state

" 'THE COURT: Reginald, is that your signature?

" 'THE DEFENDANT: Yes, it is, sir.

" 'THE DEFENDANT: Yes, I did.

" 'THE COURT: Nobody forced you to do this?

" 'THE DEFENDANT: No, sir.

" 'THE COURT: All right.

Under Ohio law, the consequences of a capital defendant's waiver are

unanimous vote and the independent approval of the trial judge.

It is no answer to assume, as did the Ohio Supreme Court, that petitioner's

Under Ohio law, a defendant who is accused of a crime punishable by death

panel. See Ohio Rev.Code Ann. 2929.03(C)(2)(b), 2945.06 (1987). Ohio's

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