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Shocking allegations of child sexual abuse by a self-proclaimed prophet and polygamist may test the limits of a 1965 U.S. Supreme Court decision forbidding a defense waiver of a jury trial unless the government also consents. U.S. District Judge William B. Shubb in Sacramento, Calif., became only the third judge since the 1970s to order a nonjury trial over the government’s objection. He held that the allegations of ritual abuse were so inflammatory it would make a fair jury trial all but impossible. A 9th U.S. Circuit Court of Appeals panel overturned that decision, and lawyers for the defense recently said they would ask the entire court to reconsider. The 9th Circuit decision in U.S. v. Labrecque, No. 06-72498, is the first by any appeals court to overturn a district judge’s waiver of a jury trial when the government objects. Under Rule 23(a) of the Federal Rules of Criminal Procedure, the government must consent to a defendant’s waiver of a jury trial. The Supreme Court upheld the rule in U.S. v. Singer, 380 U.S. 24 (1965), but left open the question of when facts may be so compelling as to trump a government objection. “We need not determine in this case whether there might be some circumstances where a defendant’s reasons for wanting to be tried by a judge alone are so compelling that the government’s insistence on trial by jury would result in the denial to a defendant of an impartial trial,” wrote Chief Justice Earl Warren in 1965. In the Sacramento case, the prosecution charges Texas sect members Michael and Juliette Labrecque of sending their four daughters to Allen Harrod, a fundamentalist Mormon and self-proclaimed prophet, and his companion Irene Hunt in California, where they were sexually abused. Harrod allegedly sent his son to the Labrecques in Texas, where the child was also allegedly abused. The indictment accuses the couples of sexually molesting the five children over an 11-year period. They are also charged with photographing some of the acts. Transport is linchpin The linchpin of the federal case is proving that the couples transported the children across state lines-Texas to California-with the intent of engaging in sex and photographing it. “We are faced with trying to explain to a jury that the intent was not formed at the time they crossed state lines,” said Harrod’s attorney, Bruce Locke of Sacramento, Calif.’s Moss & Locke. He said jurors would be overwhelmed by the allegations and unable to separate the interstate transfer requirement. The government has put the defense on notice it will introduce evidence of child molesting that dates back to the 1970s and involves more than 15 of Harrod’s other children, according to defense papers. In 2004, a state court jury convicted Harrod of 32 counts of child molesting, and he is currently serving two life sentences plus 62 years in state prison. Irene Hunt, Harrod’s common law wife, was sentenced to 20 years in state prison and has pleaded guilty to federal charges and agreed to testify against the others. In exchange, her federal sentence will run concurrent with the state sentence. Assistant U.S. Attorney Laurel White declined to discuss the pending appeal. But court papers state that a jury trial is best “if for no other reason than to better guarantee that victim witnesses who are scheduled to testify, will feel more comfortable during their court appearances.” The children, now grown, have expressed a preference of testifying to jurors rather than a judge, according to the government. Five circuits weigh in In rejecting a nonjury trial, the 9th Circuit panel said selecting a jury would be difficult but not impossible, and suggested using extensive voir dire, limiting the amount of “bad acts” evidence, tempering the lurid evidence with summaries and omitting inflammatory details. Five circuits have upheld trial court refusal to waive jury trials without government consent: the 2d, 4th, 6th, 7th and 8th circuits. And only two trial judges have waived juries in the face of government opposition-one in Rhode Island in 1976 and one in New Jersey in 1979. Both involved complex tax fraud cases considered too complex for average jurors.

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