Colorado’s second-highest court ruled earlier this month that a defendant in El Paso County did not have the right to unilaterally choose a trial by judge, rather than trial by jury, amid concerns that jurors would not treat him fairly.

Jonathan Yamar Best is serving 20 years to life in prison after a jury convicted him in 2020 of sexually assaulting a child and other related offenses. Early in the case, Best said he did not want a jury trial and instead wanted a bench trial solely before a judge. But his defense attorney and District Court Judge Michael McHenry blocked that request.

On appeal, Best contended multiple factors weighed in favor of giving up his right to a jury trial, including his status as a Black man in an overwhelmingly White jurisdiction, the nature of his crime and animosity in the community towards accused sex offenders. But a three-judge panel of the Court of Appeals was unconvinced.

“We conclude that requiring a Black defendant accused of sexually assaulting a teenager to proceed with a jury trial does not violate the defendant’s due process rights,” wrote Judge Elizabeth L. Harris in a March 7 opinion.

Although the criminally accused have the constitutional right to a jury trial, Colorado law permits defendants to elect a bench trial. The prosecutor, however, has the right to withhold their consent to such a request.

At his arraignment, Best’s attorney entered a not guilty plea on behalf of Best and McHenry announced there would be a trial by jury.

“Your Honor,” Best interjected, “I would rather you have the case. I don’t want to do a jury.”

The defense attorney responded that was “not a decision Mr. Best gets to make,” and “we’re asking for a jury trial.” McHenry agreed and reiterated a jury would hear the case.

After Best appealed, the appellate panel quickly identified a problem: Best’s attorney did not have the right to block his request for a bench trial. Because McHenry had not considered Best’s request, the prosecution never got the chance to object.

Rather than decide Best’s appeal outright, the panel returned the case to McHenry with an unusual set of instructions, essentially mandating a redo of the exchange from his arraignment.

“Best must be given the opportunity to request a bench trial, and the prosecutor must either consent or object. If the prosecutor objects, then the trial court must determine whether Best can override the objection,” wrote Harris and Judges Neeti V. Pawar and Christina F. Gomez.

In October, more than three years after jurors found him guilty, Best once again requested a bench trial. This time, the prosecution objected. Best then called criminal defense attorney Joshua Tolini to testify as an expert witness.

Tolini spoke about the legitimate reasons why Best would want a bench trial, including the difficulty of ferreting out implicit racial bias, the strong feelings jurors might have toward a defendant accused of sexually assaulting a child and potential bias against Best as a homeless man. On the other hand, Tolini acknowledged he was generally more confident in his ability to convince one juror out of 12 to acquit than to persuade the lone judge in a bench trial.

McHenry concluded that even with the downsides to a jury trial Best identified, upholding the prosecution’s objection to a bench trial did not violate Best’s right to a fair trial. It amounts to speculation, he said, “that the gap between the degree of implicit bias that exists for a member of the bench and that of a properly selected jury would amount to a due process violation.”

When the case returned to the Court of Appeals, the appellate panel agreed that neither the nature of the charges nor Best’s race was a reason to override the prosecution’s objection to a jury trial. Harris acknowledged the “pervasive problem of implicit bias,” but believed jury selection protocols could largely prevent a due process violation.

She added that other cases allowing for bench trials had more extreme circumstances. Last year, a federal judge in New York granted a bench trial over the prosecution’s objection because the defendant would be in shackles, had “anger management issues,” was mentally ill and would be acting as his own attorney. In August 2020, a different federal judge found a defendant’s health conditions, coupled with the need to remove his mask if he wanted to testify, would create an “unacceptable risk” in a jury trial.

“Best’s case does not present unique circumstances, and, therefore, his argument goes too far,” Harris concluded. “If jury trials violate the due process rights of all racially or ethnically diverse defendants or those who are charged with sexual offenses (or who satisfy both criteria), jury trials would not be the preferred mode for resolving criminal cases.”

The case is People v. Best.