On appeal from Superior Court, Law Division, Bergen County.
Deighan, R. S. Cohen and Landau. The opinion of the court was delivered by Landau, J.A.D. Cohen, R.s., J.A.D., concurring.
This opinion supplements our orders of June 10 and June 14, 1988 which granted defendants' motion for leave to appeal and summarily reversed the trial judge's denial of their R. 1:8-1(a) request to waive jury trial.
The defendants involved in the present trial include two corporate nursing home operators and two of their principals. Other defendants have been severed or entered a retraxit plea. The indictment charges defendants with filing false annual provider agreements with the New Jersey Division of Medical Assistance and Health Services (Medicaid); theft by deception from Medicaid; falsification of nursing home records; and conspiracy to promote those crimes. The conspiracy charges specific failures of duty, concealments, falsifications of records, and other acts of omission or commission which would have impacted upon elderly residents as well as upon the allegedly victimized public bodies.
Criminal actions required to be tried by a jury shall be so tried unless the defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and his opportunity to be heard, waives a jury trial. In sentencing proceedings conducted pursuant to N.J.S.A. 2C:11-3(c)(1), the consent of prosecutor shall be required for such waiver.
An amendment in 1969 deleted the rule's previous requirement that consent of the State be secured for such waiver. Fed.R.Crim.P. 23(a) requires both consent of the prosecuting attorney and approval by the trial court.
In support of their request for waiver of jury trial, the defendants made clear that they were prepared to execute in writing an intelligent and informed waiver of their constitutional right to jury trial. There was no issue in this case involving a risk that defendants could not execute knowing, informed and intelligent waivers.
Neither is there anything in the record to suggest that there were any factors which would interfere with the ability of the trial judge to be entirely impartial in making determinations of both fact and law.
Defendants offered as one reason for their request concern about widespread prior and anticipated news coverage respecting the trial, particularly inasmuch as the indictments followed a widely publicized series of expose-type investigatorial articles in a leading North Jersey newspaper. Other reasons offered by defendants in support of waiver were the ability to significantly shorten the time (and thereby materially lessen costs to defendants) of a trial anticipated to last several months if tried to a jury; the presence of multiple defendants and conspiracy charges, thus complicating the presentation to a jury; the highly charged emotional issues including patient abuse which were expected to surface; the substantial number of exhibits and prospective witnesses anticipated; the sophistication and complexity of proofs of Medicaid fraud, involving analysis of cost studies and the like; difficulty of procuring a jury willing to serve in a lengthy trial during summer months; and the inhibiting effect upon defendants' testimony.
There was no factual dispute respecting the wide publicity generated by the case or that a nonjury trial could be completed more expeditiously, or that a number of emotion-charged issues were involved. Neither did the State take serious exception to the complexity of the anticipated trial. On appeal the State has urged, however, that more complex cases, such as income tax fraud, antitrust, accounting malpractice and complex medical malpractice cases are frequently tried before juries. The State argues that this case cannot be said to be more difficult.
The trial judge rejected the State's argument that it would be difficult for him to decide questions of both law and fact. His conclusion appears to agree, however, with the State's basic contention urged on appeal, that because this is a "high visibility" case "which is being followed by certain people . . . it should appear to all that a jury of defendants' peers arrived at that verdict." The trial judge believed that it was possible for defendants to receive a fair trial by jury and stated as the reason for denial that, "when you go in to try a case such as this, the public and society expects there will be a fair and impartial trial by a jury of peers . . ." Thus, we are confronted with the question whether, under R. 1:8-1(a), a court may deny approval to defendant's waiver of jury trial based upon its conclusion that it is possible to pick an impartial jury in the circumstances, and the perception that the public, alerted and aroused by newspaper notoriety, expects a jury trial.
R. 1:8-1(a) as amended has received little interpretation until our recent opinion in State v. Edward Davidson, 225 N.J. Super. 1 (App.Div.1988). There, the trial judge's denial of a bench trial was affirmed on the peculiar facts of that case. Each case, of course, presents its own special considerations. Unlike Davidson, defendants here presented a list of factually based reasons for waiver most of which were undisputed as to fact.
The extent to which a defendant may assert a right to trial by judge, waiving the constitutional right to jury trial (U.S. Const., Amend. VI; N.J. Const., Art. I, par. 10) has been subject to
widely diverse treatment by drafters of federal and state rules of practice, as well as by their interpreters. A starting point for review of the problem is 2 American Bar Association, Standards for Criminal Justice § 15-1.2 (2d Ed.1980). These ABA standards substantially adopt the approach of Rule 23(a) of the Federal Rules of Criminal Procedure which requires consent of the prosecutor in order for defendant to waive jury trial. The principal reasons advanced to require such consent are equal treatment of the parties and protection of the public from a judge biased in favor of the defense in a particular case. By contrast, Rule 511(a) of the Uniform Rules of Criminal Procedure provides that, subject to understanding and voluntary waiver, a defendant may waive jury trial. Various arguments have been made for both approaches. See, 2 ABA, Standards for Criminal Justice, § 15-1.2 (2d Ed.1980).
It is, of course, clear that New Jersey has already determined to delete the requirement for consent of the prosecutor. This does not mean that there is an unconditional right to waive jury trial. Moreover, there is no constitutional right to its waiver. Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965); State v. Belton, 60 N.J. 103, 110 (1972).
However, even where the prosecuting attorney is required to consent, as in Fed.R.Crim.P. 23(a), federal courts have expanded on the suggestion in Singer that there are circumstances in which, notwithstanding refusal of the prosecuting attorney's consent, justice might require a nonjury trial upon request. See, United States v. Braunstein, 474 F. Supp. 1 (D.N.J.1979) and United States v. Panteleakis, 422 F. Supp. 247 (D.R.I.1976). Each of these cases involved allegations strikingly similar to those in this case respecting nursing homes and fraud. Both held that the government unreasonably withheld consent to waiver and ordered ...