Proceedings Below Immediately following a hearing held pursuant to People v. Marsden (1970) 2 Cal.3d 118, in which the court denied Kevin A.‟s apparent request to replace his attorney, the following colloquy occurred:
“THE COURT: [L]et‟s go ahead. I do believe the other parties are back here. They may come back into court now that we‟ve had this confidential hearing. “Okay. We‟re going back on record with all parties present here in the matter of the conservatorship of
[Kevin A.] [¶] …[¶] … I think we‟re ready to proceed. The matter was assigned to this court for a jury trial. “But, [conservatee‟s counsel], you wish to be heard on that—that issue.
“[CONSERVATEE‟S COUNSEL]: Yes, your Honor. I‟m prepared to enter a waiver of jury trial at this point and have a court trial in this case. And I have the authority of People vs.—Conservatorship of Maldonado, 173 Cal.App.3d 144. “THE COURT: Okay. 6.
“[CONSERVATEE‟S COUNSEL]: I‟m sorry. Yes. I‟d like to enter waiver of jury trial pursuant to the case of Conservatorship of Maldonado. “
THE COURT: [Does] petitioner wish to be heard on that issue?
“[PUBLIC CONSERVATOR‟S COUNSEL]: We have no objection to waiving the jury trial today, your Honor.
“THE COURT: Okay. [Kevin A.]
“[KEVIN A.]: I—I would like a full jury trial, please, your Honor, for today.
“THE COURT: What‟s your position with regard to your client‟s wish, [conservatee‟s counsel]?
“[KEVIN A.]: Denial of due process. “
[CONSERVATEE‟S COUNSEL]: I believe that because the jury trial right in this case is a statutory right, it could be waived by counsel. It could be waived by [Kevin A.]‟s attorney. “
THE COURT: I take it, you know, goes without saying that you believe what‟s in your client‟s best interest to waive statutory right to jury trial under the circumstances that exist at this time. “
[CONSERVATEE‟S COUNSEL]: Yes, your Honor.
“THE COURT: Okay. I‟m going to grant the waiver. My understanding is for conservatorship proceedings, it‟s a statutory right, and it‟s counsel‟s determination that it‟s in his client‟s best interest to do so; so, I find that that‟s a valid waiver, and I‟ll grant that waiver. “
[KEVIN A.]: It‟s—it‟s invalid. Your Honor, for a clarifying question—can I ask a clarifying question?
“THE COURT: Talk to your attorney …. “
[KEVIN A.]: I can‟t ask a clarifying question? “THE COURT: You cannot, sir. “
[KEVIN A.]: Okay. “
THE COURT: Do you want to take a break, talk to your lawyer.
“[KEVIN A.]: I had a quick question. Don‟t take a break. Just one question. “Your Honor, he doesn‟t makes [sic] sense. He says I don‟t have a constitutional right to a jury trial. What are we here for? I don‟t have the constitutional right to have a trial? Why am I here? “
THE COURT: Because we‟re going to have a trial in front of the Court; not a jury. “
[KEVIN A.]: He said I have a constitutional right to have a jury. Why am I not— “
THE COURT: No, you do not.
“[KEVIN A.]: I do not have a constitutional right? “
THE COURT: You only have a right by California statute, sir. That statutory right is different from a constitutional right and may be waived by your attorney if he feels it‟s appropriate to do so. [He] has made that determination, so the Court has accepted that.”
The purpose of this is in the case a conservatee lacks capacity to make such decisions. If the conservatee demonstrated out of control behaviour such as yelling and fighting it would not be in his best interest to have a jury trial. The jury would see that he is mentally ill to the point of incapacitation, However, there are many cases where the conservatee may be denied a jury trial. The court deferrs to the judgement of the patient's counsel if the court deems that the conservatee is too ill to make their own decisions. However, I disagree citing that the conservatee should have a basic right to a jury trial. It is not as if the jury trial means an automatic win for the conservatee. The conservatee should be allowed to present their case in front of a jury should the judge be bias or their counsel is ineffective. In ambiguous cases what determines a conservatee unfit to enter a preference for a jury trial or not? Is there a standard of proof for determining this and should there be one if not? What degree of mental illness symptoms do they need to exhibit before their right to express an interest in whether they want a jury trial is withheld. In this case the order establishing a conservatorship over his person was reversed but what about the many cases where it is a very grey line between sane enough to make such decisions. Also in the case of public defenders how well do they know their client to make such a decision. Due to such a high case load they only get a few minutes to meet with their clients.
Juvenile Dependency and