Ineffective Assistance / Jury Trial Waiver

[This case summarized by Felicia Sarner.]

US v. Lilly, 536 F.3d 190 (3d Cir. July 28, 2008). Since the evidence in this drug case relating to the motion to suppress was virtually identical to the trial evidence, the parties agreed to proceed with a non-jury trial and the district judge heard the pre-trial hearing and bench trial together. Before proceeding, the parties confirmed orally their desire to proceed in this manner, but the judge did not directly colloquy Lilly about his jury trial waiver. Lilly was convicted, and subsequently filed a habeas petition alleging ineffective assistance based upon counsel's alleged failure to properly advise him of his right to a trial by jury. The district court denied the petition without granting Lilly an evidentiary hearing. The Third Circuit affirmed after reviewing for abuse of discretion. In considering the Strickland prejudice prong, the proper inquiry is whether, "in the absence of counsel's advice, another fact finder (i.e., a jury) would have been reasonably likely to arrive at a different outcome . . . ." Because Lilly failed to present any evidence that the judge was biased or the proceeding unfair, he did not demonstrate a reasonable probability that the outcome would have been different had he not waived his right to a jury trial, and he therefore was not prejudiced. The Circuit nonetheless encouraged district courts to conduct colloquies in such situations.