A Busy <strong>Court</strong>The Superior <strong>Court</strong> of Arizona <strong>in</strong> MaricopaCounty is the fifth-largest trial court <strong>in</strong> the UnitedStates, consist<strong>in</strong>g of 94 judges and 52 commissioners,of which 28 judges and 29 commissioners are assigned acrim<strong>in</strong>al calendar. In fiscal year 2006, end<strong>in</strong>g June 30, therewere 40,928 crim<strong>in</strong>al cases filed, <strong>in</strong> addition to 36,691 civil casesand 50,878 family court cases. This added up to a docket of 157,956total case fil<strong>in</strong>gs. With respect to crim<strong>in</strong>al cases, the court typically disposesof almost 92 percent of such cases over a 12-month period.The court has a nationwide reputation as an <strong>in</strong>novative court. 1 Many of the juryreforms of the last 10 years were <strong>in</strong>stituted here, <strong>in</strong>clud<strong>in</strong>g jurors ask<strong>in</strong>g questions ofwitnesses <strong>in</strong> both civil and crim<strong>in</strong>al trials, and lett<strong>in</strong>g civil jurors (but not crim<strong>in</strong>al jurors)discuss a case before f<strong>in</strong>al deliberations as long as all jurors are present <strong>in</strong> the jury room. 2Although this court is not the first to conduct crim<strong>in</strong>al settlement conferences, it is certa<strong>in</strong>lyamong the very first courts to do so on a large scale. 3As <strong>in</strong> most jurisdictions, crim<strong>in</strong>al cases take precedence for trial purposes over civilcases, and at times crim<strong>in</strong>al cases are ready for trial without a sufficient number of crim<strong>in</strong>aljudges to handle them. When that occurs, civil judges are assigned crim<strong>in</strong>al trials.History and Present ProcedureIn 1996, certa<strong>in</strong> judges 4 on the crim<strong>in</strong>al bench began to do settlement conferences<strong>in</strong> crim<strong>in</strong>al cases with the consent of both parties; those judges <strong>in</strong>cludedthe then presid<strong>in</strong>g and associate presid<strong>in</strong>g judges, They took thisdramatic step after not<strong>in</strong>g that many crim<strong>in</strong>al cases thatshould have resulted <strong>in</strong> pleas were <strong>in</strong>stead go<strong>in</strong>gto trial. In addition, there was a backlog ofcrim<strong>in</strong>al cases wait<strong>in</strong>g for trial that had to beassigned to civil judges.— cont<strong>in</strong>ued on p. 10Published with the permission ofJUDICATURE, the journal of theAmerican Judicature Society,which features this article <strong>in</strong> itsMarch/April 2007 edition.APRIL 2007 ARIZONA ATTORNEY9
<strong>Settlement</strong> <strong>Conferences</strong> <strong>in</strong> Crim<strong>in</strong>al <strong>Court</strong>On the civil side <strong>in</strong> Maricopa CountySuperior <strong>Court</strong>, most cases are assignedto volunteer civil attorneys on a countywidebasis to conduct a settlementconference before a case may proceedto trial. The assigned attorneyreports back to the judge whether the caseresulted <strong>in</strong> a settlement and whether the parties negotiated <strong>in</strong>good faith. More settlements have been concluded <strong>in</strong> civil casesthan would have been the case without such conferences.With the history of civil settlement conferences <strong>in</strong> m<strong>in</strong>d andrealiz<strong>in</strong>g that only judges should be do<strong>in</strong>g such conferences <strong>in</strong>crim<strong>in</strong>al cases, these pioneer<strong>in</strong>g crim<strong>in</strong>al judges petitioned 5 theArizona Supreme <strong>Court</strong> for a rule formally authoriz<strong>in</strong>g such conferences.In 1997, the Arizona Supreme <strong>Court</strong> responded favorably,adopt<strong>in</strong>g Rule 17.4 (a), for a two–year experimental period. The<strong>Court</strong> Comment stated, “In adopt<strong>in</strong>g a statewide experimentalamendment permitt<strong>in</strong>g judges to participate <strong>in</strong> plea negotiations,the court expects that all lawyers—prosecutors and defense counselalike—will cooperate <strong>in</strong> the experimental use of this rule, andthat judges will avoid coercive behavior of any k<strong>in</strong>d.” In 1999,us<strong>in</strong>g similar language <strong>in</strong> its Comment, the court adopted Rule17.4 (a) as a permanent program and procedure, which providesas follows:Plea Negotiations. The parties may negotiate concern<strong>in</strong>g, andreach an agreement on, any aspect of the case. At the requestof either party, or sua sponte, the court may, <strong>in</strong> its sole discretion,participate <strong>in</strong> settlement discussions by direct<strong>in</strong>g counselhav<strong>in</strong>g the authority to settle to participate <strong>in</strong> a good faith discussionwith the court regard<strong>in</strong>g a non-trial or non-jury trialresolution which conforms to the <strong>in</strong>terests of justice. Beforesuch discussions take place, the prosecutor shall afford the victiman opportunity to confer with the prosecutor concern<strong>in</strong>ga non-trial or non-jury trial resolution, if they have not alreadyconferred, and shall <strong>in</strong>form the court and counsel of any statementof position by the victim. If the defendant is to be presentat any such settlement discussions, the victim shall also beafforded the opportunity to be present and to state his or herposition with respect to a non-trial or non-jury trial settlement.The trial judge shall only participate <strong>in</strong> settlement discussionswith the consent of the parties. In all other cases, thediscussions shall be before another judge or a settlement division.If settlement discussions do not result <strong>in</strong> an agreement,the case shall be returned to the trial judge.Alleged victims, pursuant to the Rule, are advised by the prosecutorof any plea the state <strong>in</strong>tends to offer, and their advice issolicited. If the victims have a contrary position, the court anddefense counsel are to be advised at the time of the conference,and the victims may be present for the settlement conference. Inpractice, it is rare for a prosecutor to advise that alleged victimsdisagree with the state’s offer, and they are not usually present atthe conference. As noted, trial judges do not conduct settlementconferences <strong>in</strong> their own cases unless the parties consent to it.Usually, judges not assigned to a case handle such conferences.Under the Rule, either party can request the conference, or ajudge can set it on her own.Judges soon realized that the number of requests for settlementconferences were more than could be handled by regularlyassigned judges with typical crim<strong>in</strong>al calendars. Four morn<strong>in</strong>gs aweek, from 8:00 a.m. until 10:30 a.m., such judges hear statusand trial management conferences, requests for mental evaluations,motions that can be done expeditiously, pleas, sentenc<strong>in</strong>gsand probation violation dispositions. Jury trials beg<strong>in</strong> after thesehear<strong>in</strong>gs. One day a week, most often on a Friday, there is usuallyno trial, and crim<strong>in</strong>al judges hear motions requir<strong>in</strong>g longerperiods for argument, and conduct evidentiary hear<strong>in</strong>gs. The typicalcrim<strong>in</strong>al department judge with a full crim<strong>in</strong>al caseload cantypically do only two or three settlement conferences a week, ifany at all.To meet the need for more judges to do settlement conferences,there are five crim<strong>in</strong>al judges designated special assignmentjudges, <strong>in</strong>clud<strong>in</strong>g the presid<strong>in</strong>g and associate presid<strong>in</strong>g crim<strong>in</strong>aljudges. On Monday through Thursday, they handle trials thatregularly assigned divisions cannot do. Most important, becausethey do not have a regularly assigned caseload, they do settlementconferences five days a week, usually from 8:00 a.m. until 10:30a.m. before jury trials commence, as well as all day Friday. Thesefive judges each typically handle 30 to 70 conferences a month,or about one-third of the 610 average monthly conference volume.This demonstrates that many judges are conduct<strong>in</strong>g crim<strong>in</strong>alsettlement conferences, <strong>in</strong>clud<strong>in</strong>g some judges on civil assignment.This enables all judges to develop an expertise <strong>in</strong> this area.How <strong>Conferences</strong> OperateTo be sure, not all judges are comfortable conduct<strong>in</strong>g crim<strong>in</strong>alsettlement conferences, and they are not asked to do them. Themajority of crim<strong>in</strong>al judges do participate <strong>in</strong> them when they havethe time. Although the personality of the <strong>in</strong>dividual judge willaffect how such conferences are conducted, there are commonelements that judges use.Personal Greet<strong>in</strong>g/Informal AtmosphereFirst and foremost is the <strong>in</strong>formal sett<strong>in</strong>g.There is always a personal greet<strong>in</strong>g given to the defendant,who is called by his or her surname, and some judges shake handswith the defendant. Though judges are most often robed and a10 ARIZONA ATTORNEY APRIL 2007www.myazbar.org