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

Prior to his 2012 conviction, Smith spent much of the previous five years not legally competent to stand trial. He was ordered into treatment at the state’s mental health hospital and received at least two types of antipsychotic medication. 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 gave a one-word response each time: “Yes.”

Earlier this month, a three-judge panel for the Court of Appeals agreed the evidence suggested Smith did not know what he was doing by forgoing a jury trial, and it was then the prosecution’s responsibility to prove he did. But the trial judge who reviewed and denied Smith’s claims never held the prosecution to that burden.

Although Smith asked for a new trial outright, the appellate panel took the more cautious step of letting a Denver District Court judge make that decision after further evaluation.

“Because the evidence was sharply 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 allocation of the burden of proof might have led to a different outcome,” wrote Judge Elizabeth L. Harris in the July 7 opinion.

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

A judge found Smith not competent to proceed, and ordered him committed to the Colorado Mental Health Institute at Pueblo. Two years and six hearings later, Smith was finally deemed competent to stand trial, although his defense lawyer warned at the time that “we’re kind of on the bubble” of Smith’s competency.

But Smith deteriorated in Denver’s jail and once again lacked the competency to proceed to trial. In October 2011, the mental institute deemed Smith competent and his defense attorney filed a motion giving up his client’s right to a trial by jury. In such instances, there is a bench trial, whereby a judge hears the case and renders a decision.

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

“Yes,” Smith responded.

“Are you thinking clearly here today?”

Yes,” Smith again answered.

“And is this your own decision?” the judge continued.

Once more, Smith answered yes. Laff decided Smith had knowingly, voluntarily and intelligently waived his right to a jury trial. At the following year’s bench trial, 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 postconviction relief, contesting Laff’s determination that he intentionally waived his constitutional right to a trial by jury. Psychiatrist Karen V. Fukutaki met with Smith and concluded he was not competent on 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 request. 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 Smith’s specific allegations and Fukutaki’s analysis made it plausible Smith had not, in fact, intentionally given up his rights.

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

Smith’s lawyer from the trial recalled he was worried about the racial implications of a jury trial, given that Smith was Black and the victim was white. At the same time, the lawyer had discussed with Smith that “we just needed to get through to one person” on a jury to avoid a conviction.

Grant, in a 2019 order, decided Smith had not shown his waiver of the right to a jury trial was invalid. Fukutaki’s opinion was “speculative” and Laff’s questioning of Smith, “albeit brief, was sufficient and appropriate.”

Smith turned again to the Court of Appeals. His attorney now argued there was never really a belief in 2011 that Smith was competent to stand trial, and Laff’s questioning was deficient. The judge did not ask about any medications Smith was taking, why Smith had failed to sign the waiver request himself, or even ask Smith whether he comprehended certain key components of the right he was giving up — all of which are listed explicitly in Colorado’s criminal procedural rules.

“What is it he didn’t understand? Or is your position he didn’t understand anything?” Harris asked Smith’s attorney during oral arguments before the appellate panel.

“At different points in time he believed that a bench trial was the same as the entry of a plea,” responded Kimberly Penix. “At another point in time … he believed that a bench trial had six jurors.”

The Colorado Attorney General’s Office argued there were several points about the criminal justice system Smith knew during Fukutaki’s assessment of him. For example, Smith recognized what a plea bargain was, that a judge was “the boss of the courtroom” and jury verdicts must be unanimous.

“How do we know he knew those things in 2011?” asked Judge Sueanna P. Johnson during oral arguments. “What if he had somebody teach him those things and he’s been stabilized and he knows those things now?”

Harris echoed a similar concern about selectively reading Fukutaki’s findings.

“It seems like if the court’s saying, ‘Well, I’m not really gonna put a lot of emphasis on what Dr. Fukutaki says because she interviewed him many, many years after the waiver. So it’s not great evidence of what he knew in 2011’,” she said, “then why would we put a lot of emphasis on the things that Dr. Fukutaki says, like, ‘Oh, I think he knew that the (judge) was the boss of the courtroom?'”

The panel determined Smith had plausibly stated 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 Smith did act voluntarily, knowingly and intelligently. Instead, Harris observed in the opinion that Grant put the burden entirely on Smith to prove his claims.

The Court of Appeals returned the case to the trial court for yet another review of whether Smith should receive a new trial.

The case is People v. Smith.