dissenting:
¶ 25 I dissent.
¶ 26 In 1980, a 3-2 majority of this court, in Chess v. Smith,1 reversed the conviction of a defendant who had been tried in jail clothing even though he had objected to his attorney but his attorney had failed to convey that objection to the court. I have no quarrel with the outcome of Chess. It seems clearly required by applying Strickland, v. Washington.,2 which guarantees effective assistance of counsel, to Estelle v. Williams,3 which entitles a defendant to trial in street clothing if desired. Indeed, the majority began its analysis in Chess by pointing out that failure of counsel to object could constitute ineffective assistance.4
¶ 27 Apparently believing that Estelle and its Utah corollary, Gentry v. Smith,5 would require affirming the conviction, the Chess majority overruled Gentry. In the process, the majority stated that prejudice to the defendant was the vice to be avoided.6 This is the reasoning supporting the outcome in Chess. The actual holding of Chess went beyond what the reasoning supported, and adopted a rule mandating reversal in every case where a defendant stands trial in jail clothing, unless an on-the-record inquiry shows an intelligent and conscious decision to stand trial in jail clothing. The majority compared this requirement to that imposed in the acceptance of guilty pleas and the approval of a waiver of counsel.7
¶ 28 This extension of Estelle has not been adopted by the United States Supreme Court or by any of our sister states. Notice of this unique requirement has not been given to trial courts by including it in the Utah Rules of Criminal Procedure, as has been done with the taking of guilty pleas and the approval of waivers of counsel.8 I believe the result is that, although virtually every trial judge knows that defendants have the right to trial in street clothes, virtually no trial judge knows that an on-the-record inquiry must establish a conscious and intelligent decision to waive this right.9 In a case where a defendant is charged with escape or assault *7by a prisoner and the defendant asserts that he fought or escaped in order to avoid physical or sexual assault by another inmate, it would be obvious to the trial court, the prosecutor, and defense counsel not only that the defendant is not prejudiced by trial in jail clothing, but that presenting himself as an inmate is an essential part of the defense. Even so, if the trial court is unaware of the unique holding of Chess, now hardened in this case, that defendant has ironclad appeal insurance.
¶ 29 The principle of stare decisis requires more than disagreement with precedent. The rule announced in Chess departs from federal precedent and has not, as far as I can determine, been adopted by any other state. The rule sweeps more broadly than necessary to decide Chess and extends beyond the logical basis articulated for it. In adopting the rule, the court did not expressly assert its authority to either interpret the Utah Constitution or supervise the lower courts. The rule has not been included in the Utah Rules of Criminal Procedure or the annotations thereto, and I believe it is virtually unknown to trial judges. It has not been cited in any other case and, in nineteen years, has affected the outcome of only this case. Here, it operates to force defendant’s family members, if they can be found after nine years, to relive and recount his reign of terror or defendant will go free.
¶ 30 I believe that a rule that is so poorly known, differs so radically from other precedent, and has had such little effect, but such a dramatic effect on one family, is a prime candidate for elimination. If this court is unwilling to eliminate it, perhaps it will illuminate it by adding it to rule 17 of the Utah Rules of Criminal Procedure.
¶ 31 I would overrule Chess to the extent that it purports to require more than a showing of prejudice. I would then examine whether Bennett was actually prejudiced by standing trial in jail clothing.
¶ 32 Having disqualified himself, Justice Stewart did not participate herein; District Judge Lyle R. Anderson sat.
. 617 P.2d 341 (Utah 1980).
. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland, of course, had not yet been decided in 1980, but the right to effective assistance of counsel was well established in Utah, having been most recently reaffirmed in State v. Gray, 601 P.2d 918 (Utah 1979).
. 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976).
. 617 P.2d at 344 n. 1.
.600 P.2d 1007 (Utah 1979).
. 617 P.2d at 345 n. 2.
. 617 P.2d at 345.
. Utah R.Crim. P. 11.
. I base my belief on my own experience, on the fact that this rule is not mentioned in the Trial Court Bench Book produced by the Education Division of the Administrative Office of the Courts, and on the absence of any annotation to Chess in the Utah Rules of Criminal Procedure. The rule is mentioned only in annotations to section 77-1-6, Utah Code Ann. (1999), and to article I, sections 7 and 12 of the Utah Constitution.