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There is no constitutional impediment to conditioning a waiver of the right to a trial by jury on the consent of a prosecuting attorney and a trial judge. The burden is upon a defendant to rebut the presumption of impartiality on the part of prospective jurors. Where the government objects to a defense motion to proceed without a jury, and the defense offers no evidence to establish reasons so compelling that the government's insistence on trial by jury would result in the denial to the defendant of an impartial trial, a court is within its discretion in denying the defendant's request.
Appellant Theodore Morlang was convicted by a jury for conspiracy to bribe. His conviction stemmed from an alleged bribery scheme involving a Federal Housing Administration insured housing project. Seven projects were launched by appellant under the FHA plan. When the approval of the development became bogged down in the FHA office, the Director of the FHA project allegedly solicited a bribe to walk it through the offices. This bribe was purportedly paid by appellant and others, although the insurance agent testified that appellant was in no way involved. The director also testified at trial, that prior to the bribe being paid, appellant personally gave him $800 while in the presence of the insurance agent, however, this was denied by both appellant and the agent. The jury did not believe beyond reasonable doubt the director’s story but the jury however found appellant guilty on the charge of conspiracy to bribe. Appellant then raised number of issues regarding the conduct of his trial.
Should the appellant’s review of district court’s judgment finding him guilty of the crime be granted?
The court found that that appellee's refusal to consent to appellant's waiver of a jury trial had not denied appellant an impartial trial because appellant offered no evidence to establish reasons so compelling that appellee's insistence on trial by jury would result in the denial to appellant of an impartial trial. Therefore, it was in the court's discretion in denying appellant's request. However, the court vacated the judgment and remanded for new trial. The court held that the trial court erred in permitting the appellee to present to the jury, for purposes of impeachment, an out-of-court statement, which was a conclusion as to appellant's guilt, purportedly made by its own witness. The trial court also erroneously permitted appellee to examine its own witness by reading from his grand jury testimony without any showing that memory needed refreshed or that the witness had been uncooperative.