Settlement Conferences in Criminal Court - Lawyers

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Settlement Conferences in Criminal Courtcourt reporter is present for all discussions,judges are not usually on thebench. Rather, they sit at a tablewith the defendant, his or her counsel,and the prosecutor or stand infront of the table using a flip chart. Somejudges prefer to meet with both counsel first in chambers toestablish ground rules and to get a better grasp of the case. Somewould rather hold the settlement conference itself in chambers orthe jury room rather than the courtroom.Those judges who use a chart have written on it in advance ofthe conference the charges, the sentencing ranges if convicted,prior convictions and any plea offer (if known prior to the conference).In that regard, some judges require one or both attorneysto file a settlement memorandum prior to the conference,whereas others do not. The plea offer will be written on the chartand reviewed with the defendant during the conference, whichusually last 30 to 45 minutes.Imparting Information/State’s Evidence/State’s OfferThe judge explains that the purpose of a settlement conference isthreefold:1. to give information to the defendant about what he or she ischarged with and the sentencing range of each charge,should the jury determine the defendant is guilty beyond areasonable doubt of any charge;2. to advise defendant of the evidence the state will introduceat the trial. Typically, the judge asks the prosecutor to dothis, as the judge is usually not that familiar with the case;and3. to examine the plea offered by the state, its pros and consand ramifications to the defendant, contrasting it to the sentencingrange of the charge if there is no plea and he isfound guilty by a jury.Absence of Coercion/Jury Role/StatisticsSettlement judges stress to the defendant that the purpose of aconference is not to force the defendant to enter into a plea,which would be highly improper. Instead, the purpose is to givethe defendant information. Given that fact, he or she will not betold anything different than what their counsel has undoubtedlytold them. The judge also indicates to the defendant that:• Defendant has an absolute right to a trial, but that this is achance to talk to a judge who has no stake in their case.• Defendant is free to ask any questions he or she wants.• Both the prosecutor and defense counsel are experienced inthese types of trials (assuming this is true).• Defendant’s counsel will do all that is required to properlyprotect the rights of the client.• Jurors are highly sophisticated, usually very fair and reasonable.• A jury is instructed that if it is “firmly convinced” 6 that adefendant is guilty of a particular charge beyond a reasonabledoubt, it has a duty to convict. If not, the jury has aduty to acquit (some judges will discuss what happens at thetrial and trial procedure).• Of 10 individuals who appear before asettlement judge, one to four will enterinto pleas that day or set a date beforethe settlement judge or the trial judge totake the plea.• An additional one to four will enter intopleas later in the process, often as a resultof the settlement conference.• One to two proceed to trial. 7Judges advise the defendant that they arethere to answer any questions that the defendantmay have. Some judges will, if asked,give their opinion whether it is a tough case todefend.A judge’s typical statement is that thoughdefense counsel are committed to protectingdefendant’s rights, they are not magicians andmay not get the result the defendant wouldlike, if in a given case the evidence is overwhelming.Usually, judges will discuss withdefendants who have priors whether theircredibility can be impeached if they take thestand.Why Do SettlementConferencesThe use of settlement conferences has grownover the years.In 1999 when the Supreme Court adopteda permanent procedure governing theiruse, the Maricopa County Superior Court wasaveraging 165 conferences a month, 8 whereasthe criminal division averaged 610 monthlysettlement conferences in the first ninemonths of 2006. Settlement rates during1997–1999 were between 64 percent and 78percent. 9 Those involved in the process—defense lawyers, prosecutors and judges—believe the settlement rates are within that range today, notwithstandingthe increased volume of cases using the settlementprocess. 10In 2006, the Maricopa County Attorney’s Office instituted apolicy that no further pleas will be offered after 30 days from the12 ARIZONA ATTORNEY APRIL 2007www.myazbar.org
trial date. The effect of this policy puts pressure on the parties toget something done. Moreover, it is often the case that the statewill advise at the settlement conference that it is the last day thestate will offer a particular plea. Defense counsel and their clientsrealize that if a plea is offered in the future, after the 30-day cutoff,it is likely to be more harsh. This provides an incentive toThe purpose ofa conference isnot to forcethe defendantto enter intoa plea, which wouldbe highly improper.Instead, thepurpose is to givethe defendantinformation.examine a plea offer realistically.The Maricopa County Attorney also retains a policy wherebyif defense counsel or a settlement judge believe a plea is too harshgiven the circumstances, a request (usually asked to be put inwriting) for a deviation from policy can be sent to the prosecutor.In that case, the plea will be restaffed and reconsidered. Fromjudges’ experience with this process, it can be stated that thisrestaffing is usually done in good faith, and deviations are grantedby the County Attorney in appropriate cases.This latter assumption, in some respects, may not reflect theexperience of the defense bar. James J. Haas, Maricopa CountyPublic Defender, has this to say with respect to the efficacy of settlementconferences:Settlement conferences under Arizona’s Rule 17.4 haveproven useful in two situations.The first is where the defendant, for whatever reason, doesnot trust the advice of his attorney when the attorney recommendsacceptance of a plea agreement. In that instance, it canbe very helpful to have a judge advise the defendant of theconsequences of going to trial or taking the plea, essentiallyechoing the advisement given the client by his attorney.The second situation is where the plea offer is disproportionatelyharsh, and the settlement conference judge can exertsome influence on the offer by contacting the higher levels ofmanagement in the prosecutor’s office.Unfortunately, in Maricopa County, the second of thesesituations is becoming more and more rare because of theunwillingness of the prosecution to consider alternatives to itsplea offers. Settlement conferences are a waste of time andshould be abandoned if only one side is willing to make goodfaith attempts to resolve cases.On the other hand, Andrew P. Thomas, Maricopa CountyAttorney, comments:Settlement conferences can be useful tools in appropriate circumstances.They are useful in bringing the parties togetherearly in the proceedings so that they can gauge which cases arelikely to go to trial or be resolved by plea agreement. They canalso be used to resolve cases with a “difficult defendant.” Anycases resolved at settlement conferences that are set early in theprocess and within the plea cutoff dates required by theMaricopa County Attorney’s Office (MCAO) save resourcesfor MCAO, the courts and the defense.Settlement conferences are significantly less useful whenthey are set late in the proceedings, such as on the eve of trial.At this point MCAO has invested significant resources inpreparation for trial. Therefore, the benefits to the State inattending a settlement conference are greatly diminished. Infact, at many of these settlement conferences judges attemptto pressure young prosecutors into re-extending offers in violationof MCAO’S plea cutoff policy.Another downside to settlement conferences occurs whentoo many conferences are set on a court calendar. In theseinstances, prosecutors and defense attorneys waste significantwww.myazbar.orgAPRIL 2007 ARIZONA ATTORNEY13
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Settlement Conferences in Criminal Court - Lawyers

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