In 15-year lawsuit, appeals court orders reconsideration of cognitively impaired man’s case | Content reserved for subscribers

A cognitively impaired man serving a 22-year prison sentence for assault could face a new trial, after the state’s second-highest court ordered a Denver judge for the second time to consider whether Charles Alston Smith knew what he was doing when he waived his constitutional right. right to a trial by jury.

Prior to his 2012 conviction, Smith had spent much of the previous five years without legal jurisdiction to stand trial. He was ordered to undergo treatment at the state psychiatric hospital and given at least two types of antipsychotic drugs. When then-District Court Judge Kenneth M. Laff asked Smith three basic questions in October 2011 about whether he wanted to waive his right to a jury trial, Smith responded in one word to each time: “Yes”.

Earlier this month, a three-judge panel at the Court of Appeals agreed the evidence suggested Smith didn’t know what he was doing by waiving a jury trial, and it then fell to the prosecution to prove it. But the trial judge who considered and dismissed Smith’s claims never placed that burden on the prosecution.

Although Smith requested a new trial, the appeals committee took the more cautious step of letting a Denver District Court judge make that decision after further evaluation.

“Because the evidence was strongly conflicting as to Smith’s overall understanding of the right to a jury trial and the consequences of waiving that right, it is possible that the proper distribution of the burden of proof could have led to a different outcome,” Judge Elizabeth L. Harris wrote in the July 7 opinion.

Smith’s case has been active since July 2007, when he stabbed an unidentified man with a screwdriver in downtown Denver. He faced charges of assault and attempted murder.

A judge declared Smith incompetent to prosecute and ordered that he be committed to the Colorado Institute of Mental Health in Pueblo. Two years and six hearings later, Smith was finally found fit to stand trial, although his defense attorney warned at the time that “we’re kind of on the bubble” of Smith’s jurisdiction.

But Smith deteriorated in Denver jail and, once again, lacked the jurisdiction to proceed to trial. In October 2011, the psychiatric institute found Smith competent and his defense attorney filed a motion waiving his client’s right to a jury trial. In such cases, there is a bench trial, in which a judge hears the case and makes a decision.

“Is that what you would like to do?” Laff asked Smith during a hearing.

“Yes,” Smith replied.

“Are you thinking clearly here today?”

Yes,” Smith replied again.

“And is it your own decision? continues the judge.

Once again, Smith answered yes. Laff decided that Smith knowingly, willfully and intelligently waived his right to a jury trial. At the bench trial the following year, District Court Judge Brian R. Whitney found Smith guilty only of assault and sentenced him to 22 years in prison.

In 2016, Smith filed for post-conviction relief, challenging Laff’s decision that he intentionally waived his constitutional right to a jury trial. Psychiatrist Karen V. Fukutaki met with Smith and concluded he was not competent the day he appeared before Laff.

A third district court judge, Andrew P. McCallin, issued an order in January 2017 without a hearing that denied Smith’s claim. Smith was able to “appreciate the consequences” of his statements at the time, McCallin concluded.

But a Court of Appeals panel ordered a hearing, finding that Smith’s specific allegations and Fukutaki’s analysis made it plausible Smith had not, in fact, intentionally waived his rights.

Now before District Court Judge Jay S. Grant, Smith presented Fukutaki’s testimony that he had psychotic symptoms and could not grasp the differences between a jury trial and a bench trial. Smith himself testified that he “just wanted six jurors”.

Smith’s attorney at the trial recalled that he was concerned about the racial implications of a jury trial, given that Smith was black and the victim was white. At the same time, the attorney had discussed with Smith that “we only had to communicate with one person” in a jury to avoid a conviction.

Grant, in a 2019 order, ruled that Smith had failed to demonstrate that his waiver of the right to a jury trial was invalid. Fukutaki’s opinion was “speculative” and Laff’s questioning of Smith, “although brief, was sufficient and appropriate”.

Smith again turned to the Court of Appeals. His lawyer has now argued that there was never really a belief in 2011 that Smith was competent to stand trial, and Laff’s questioning was flawed. The judge didn’t ask about the medications Smith was taking, why Smith hadn’t signed the waiver request himself, or even ask Smith if he understood some key elements of the right he was waiving – all of which are explicitly listed in the Colorado Penal Code. rules of procedure.

“WhDidn’t he understand? Or is it your position that he didn’t get it?” Harris asked Smith’s attorney during oral arguments before the appeals panel.

“At different times he believed that a bench trial was tantamount to entering a plea,” replied Kimberly Penix. “At another time…he believed a trial bench had six jurors.”

The Colorado Attorney General’s office argued that there were several points about the criminal justice system that Smith knew about when assessing Fukutaki about it. For example, Smith recognized what a plea bargain was, that a judge was “the boss of the courtroom” and that jury verdicts had to be unanimous.

“HHow do we know he knew these things in 2011?” Judge Sueanna P. Johnson asked during closing arguments. “What if he had someone to teach him these things and he was stabilized and qu ‘he knows these things now?’

Harris echoed a similar concern about the selective reading of Fukutaki’s findings.

“This it looks like if the court says, “Well, I’m not really going to dwell on what Dr. Fukutaki says because she interviewed him many, many years after the waiver”. So it’s not much evidence of what he knew in 2011,” she said, “so why would we put so much emphasis on the things that Dr. Fukutaki says, like, ‘Oh, I think he knew the (judge) was the boss of the courtroom? “”

The panel determined that Smith plausibly stated that he did not know what he was doing in waiving his right to a jury trial, and Grant neglected to analyze whether prosecutors had proven that Smith acted voluntarily , knowingly and intelligently. Instead, Harris observed in the opinion that Grant was placing an entire burden on Smith to prove his claims.

The Court of Appeal returned the case to the trial court forand another consideration of whether Smith should be given a retrial.

About Jessica J. Bass

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