dissenting.
I respectfully dissent because Billy Joe Sowell’s (“Sowell”) waiver of his constitutional right to a jury trial was neither knowing nor intelligent. What the majority labels as a calculated risk undertaken by Sowell, I consider to be the height of uncertainty because Sowell, an abnormally unintelligent individual, was not aware that he could still receive the death penalty if he waived his right to a jury trial. In light of the pre-AEDPA standards of review that we must apply, I would affirm the district court’s grant of a conditional writ of habeas corpus because a jury trial waiver is not knowing and intelligent when a defendant is not aware that he or she could be sentenced to death.
Risk is not synonymous with uncertainty. Whereas risk can be managed, uncertainty is immeasurable and wild. The calculation of risk centers upon an estimation of potential loss versus potential benefit. Accordingly, risk cannot be managed with*839out some knowledge of the possible downside. Just as even the most risk-loving sports gambler or venture capitalist would not place a bet or make an investment without knowing the size of the financial stake being risked (the amount that could be lost), a criminal defendant cannot fully understand the ramifications of waiving his or her right to a jury trial without knowing the potential loss that could result. Such a concept resonates with even more intensity when a defendant has limited cognitive abilities.
The filing of Sowell’s habeas petition before the enactment of AEDPA impacts our review of the state court proceedings. We review de novo a state court’s “[d]eter-minations of law, or determinations involving mixed questions of fact and law.” Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999). A writ of habeas corpus must be issued “if the state court proceedings were fundamentally unfair as a result of a violation of the Constitution or laws or treaties of the United States.” Powell v. Collins, 332 F.3d 376, 388 (6th Cir.2003). The failure of the state trial court to ensure that Sowell knowingly and intelligently waived his right to a jury trial in accordance with the constitutional guarantees afforded to criminal defendants rendered the state proceedings fundamentally unfair.
The primacy of the jury trial represents one of the pillars upon which our criminal justice system rests. See Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (“[T]rial by jury in criminal cases is fundamental to the American scheme of justice-”); U.S. Const. art. Ill, § 2 (“The Trial of all Crimes ... shall be by Jury....”); U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to ... an impartial jury.... ”). “Trial by jury is the normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases above the grade of petty offenses.” Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930). Even though “the right of the accused to a trial by a constitutional jury [must] be jealously preserved,” id., a defendant can waive this core right, but only when certain safeguards have been satisfied. “[Bjefore any waiver can become effective ... the express and intelligent consent of the defendant” must be obtained. Id. “[T]he duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.” Id. at 312-13, 50 S.Ct. 253 (emphasis added).
The validity of such a waiver turns on the particularized facts of a specific case. “[WJhether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.” Adams v. United States ex rel. McCann, 317 U.S. 269, 278, 63 S.Ct. 236, 87 L.Ed. 268 (1943). Our analysis of the waiver’s intelligence cannot ignore two circumstances pertinent to this appeal: the gravity of the potential sentence and Sowell’s mental state. “What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of the consequences of his actions.” Boykin v. Alabama, 395 U.S. 238, 243-44, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) (quotation omitted). “[B]ecause there is a qualitative difference between death and any other permissible form of punishment, there is a corresponding difference in the need for reliability....” Zant v. Stephens, 462 U.S. 862, 884, 103 *840S.Ct. 2733, 77 L.Ed.2d 235 (1983). This need for reliability is even more pressing when a death-penalty eligible defendant has demonstrated mental problems. “[T]he purpose of the ‘knowing and voluntary’ inquiry ... is to determine whether the defendant actually does understand the significance and consequences of a particular decision.... ” Godinez v. Moran, 509 U.S. 389, 401 n. 12, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993).
In evaluating the constitutionality of various processes for assessing the intelligence of a waiver, we have not mandated that a state trial court conduct a defined colloquy or even obtain a written waiver, but in order for a waiver to be constitutionally sound, the trial court must be convinced that the waiver is knowing and intelligent. In the context of a direct federal appeal, we have stated that a waiver is knowing and intelligent only if the defendant has “both the mental ability and some knowledge of the jury trial right before he is allowed to waive it” so as to allow the defendant to “intelligently weigh the value of the safeguard.” United States v. Martin, 704 F.2d 267, 273 (6th Cir.1983). We have “implorefd] district courts to personally inform each defendant of the benefits and burdens of jury trials on the record prior to accepting a proffered waiver,” id. at 274, but we have stopped short of making mandatory such a colloquy. See United States v. Sammons, 918 F.2d 592, 597 (1990) (declining to impose a colloquy requirement); Spytma v. Howes, 313 F.3d 363, 370 (6th Cir.2002) (applying Martin and Sammons in the habeas context). In Martin, we suggested that, “[a]t a minimum, a defendant should be informed that a jury is composed of 12 members of the community, he may participate in the selection of the jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial right.” Martin, 704 F.2d at 274-75. Similarly, we have held that a written waiver is not constitutionally required. Fitzgerald v. Withrow, 292 F.3d 500, 504 (6th Cir.2002).
Nevertheless, there must be some indication that a defendant is intelligently and knowingly waiving the right to a jury trial, which I believe includes a showing that the defendant understands the maximum punishment available in the event of a finding of guilt. There are different reasons why a defendant would forego trying his or her case in front of a jury, one of which is a belief that a defendant may be less likely to receive a certain punishment, particularly the death penalty, if he or she submits to a bench trial. In such a situation, a decision to waive the right to a jury trial cannot be considered intelligent if the defendant is not aware of sentence that could result.
Here, neither the written form nor the oral colloquy apprised Sowell that the death penalty would still be available upon waiver of the right to a jury trial. The written waiver did not discuss the death penalty. The oral colloquy similarly lacked any mention of punishment, save for an oblique reference to the “maximum penalty” in the midst of a convoluted and unfinished half question/half thought that would be confusing to many trained lawyers and judges, as well as most criminal defendants. See Joint Appendix (“J.A.”) at 730 (Trial Tr.) (“And of course do you understand that, of course, before the maximum penalty could be before — Okay, do you understand that the judges to sit with this Court, that is the other two judges will be selected by the presiding Judge, I am not the presiding Judge of the Common Pleas Court, but that the presiding Judge of the Common Pleas Court will decide who the other two judges will be?”). The state trial court never ascertained if Sowell understood that the three-judge panel had the ability to sentence him to *841death nor did it mention the penalty stage of the proceeding.
The majority places great stock in the distinction between Sowell believing that a panel of judges could not deliver the death penalty and Sowell believing that a panel would not deliver it. Op. at 835. While this is a narrow legal distinction that So-well’s attorney perhaps understood, I cannot believe that Sowell, given his mental infirmities, distinguished between the two, particularly when his attorney did not make clear the difference and when the trial court did nothing to explain that So-well could still receive the death penalty if he appeared before the three-judge panel. Sowell clearly believed that he would not receive the death penalty if he waived his jury right: whether he believed that the law prevented the judges from sentencing him to death or that the judges would not sentence him to death is immaterial, as either belief belies the knowing and intelligent nature of his jury waiver.
The reality that Sowell was an individual of abnormally low levels of intelligence and powers of comprehension cannot be shunted aside. See Lott v. Coyle, 261 F.3d 594, 611 n. 8 (6th Cir.2001) (noting that “we do not take lightly any suggestion that [the defendant] lacked the mental ability to understand the rights he was waiving,” but ruling that the defendant had not sufficiently demonstrated that he suffered from some limitation of his mental abilities). The district court found that Sowell had only an eighth grade education, suffered from organic brain damage, and had an intelligence level in the bottom 2% of the population.1 The defendant’s expert testified that the “the likelihood that Mr. So-well genuinely understood, intellectually and intelligently comprehended what was being said to him, is minimal.” J.A. at 605 (Gelbort Test.). The state trial court knew of Sowell’s problems,2 proceeded to ask him rote questions about several structural aspects of a jury trial, but completely failed to mention the potential punishment that Sowell faced. Given that “the right of the accused to a trial by a constitutional jury [must] be jealously preserved,” Patton, 281 U.S. at 312, 50 S.Ct. 253, and mindful of the trial court’s duty to ensure that a defendant is intelligently waiving the right to a jury trial — a duty that is exercised “with a caution increasing in degree as the offenses dealt with increase in gravity,” id. at 312-13, 50 S.Ct. 253 — I cannot agree that Sowell intelligently waived his rights, because he did not understand that he would still be eligible for the death penalty.
I respectfully dissent.
. This factual finding, along with all the other factual findings made by the district court, was not clearly erroneous. Based upon a review of the evidence presented during the evidentiary hearing, I am not left with the “firm and definite" conclusion that the district court erred. Furthermore, all of the testimony relating to Sowell's mental capabilities was unrebutted by the State.
. Two of the mental health specialists (Drs. William Walters and Emmett Cooper) who examined Sowell prior to the jury waiver colloquy in order to assess his competency to stand trial concluded that Sowell could stand trial, but that he had an extremely low IQ, an inability to comprehend complex concepts, and diminished intellectual capacity. Joint Appendix at 494 (Dist.Ct.Op.).