Settlement Conferences in Criminal Court - Lawyers

More documents

Recommendations

Info

Settlement Conferences in Criminal Courtblocks of time waiting for their casesto be called.Finally, the advent of settlementconferences in criminal caseshas had another negative impact.Because settlement conferences are so readilyavailable, some attorneys within the defense communityrely unduly on the courts to do their job for them. In someinstances, defense attorneys request settlement conferencesmerely to meet with their in-custody clients. At some of theseconferences defense attorneys convey plea offers to defendantsfor the first time. The pleas are either entered without a settlementconference being held or the conferences are continuedso that defendants can consider plea offers. Yet court timewas set aside for these “settlement conferences,” and prosecutorswere required to be present.Larry A. Hammond, a private defense counsel in Phoenix andPresident of the American Judicature Society during 2003–2005,offered the following observation:Have settlement conferences proven to be valuable?Absolutely. Every criminal defense lawyer and, I would suppose,every good prosecutor can cite the cases in which theconstructive intervention of a judge has helped to achieve aresult fair to all sides. There is reason to question, however,whether one can expect settlement conferences to continue tobe useful in the future, at least in this county.Obviously, the settlement of any case—whether civil orcriminal—requires good faith cooperation and open-mindednesson both sides. One important element must be a respectfor, and willingness to listen to, what the settlement judge mayhave to say. If the defendant is unwilling to listen, the timemay well have been wasted. Likewise, when the prosecutor,relying on an inflexible plea policy, refuses to consider thecourt’s views, the process becomes equally frustrating. Theprocess does not work well when those who supervise theprosecutor’s office assume that the settlement judge’s motiveis to “pressure young prosecutors,” or when the prosecutionbelieves that defense counsel has some motive other thanattempting appropriately to resolve the case.It remains to be seen whether this very good innovationwill continue to enjoy vitality. I certainly cannot speak for allcriminal defense lawyers, but I believe that most hope thatjudges do continue to make themselves available to assist inthe settlement process and that the line prosecutors assignedto these cases are allowed by their supervisors to exercise thelevel of judgment necessary for these conversations to proveuseful.Although not all lawyers and judges participating in settlementconferences will agree with the foregoing criticisms, anyjurisdiction contemplating use of the settlement conferenceshould know the perceived downside. However, the authors feelthat such criticisms do not detract from the benefits obtained inmost cases by conducting such conferences.ConclusionThere is no rule in Arizona requiring all criminal cases to havea settlement conference before they can go to trial. Still, as itnow stands, approximately 65 percent of criminal cases go tosuch conferences. The other 35 percent represent those cases:• disposed of by plea, diversion or dismissed very early in theprocess before a case is officially assigned to a criminal trialdivision;• the defendant has been advised of a plea offer and does notwant a settlement conference;• both sides agree a settlement conference would be unproductive;or• no plea offer will be made.Settlement rates of those holding conferences continue toaverage 64 percent to 78 percent, with most participants estimatingit is on the higher side of this range. Implementation ofsuch a procedure was enhanced because the judiciary took thelead and lawyers, including those dissenting, 11 had a voice in theplanning process. Moreover, the Arizona Supreme Court has “along and successful history of innovation in general and of rulemaking in particular.” 12The reasons given in 1997 to the Arizona Supreme Court inthe Petition of then-Presiding Criminal Judge Ronald S.Reinstein, urging the court to adopt a criminal settlement conferenceprocedure, sums up why we do them and, because nothinghas really changed, why we continue to do so:Criminal caseloads in all courts of the state have reachedrecord numbers. Because of inadequate resources in ourcourts, prosecution agencies, indigent defense agencies, andcourt appointment counsel budgets, we are being asked todo more with less. Court time and attorney time should betreated as scarce resources. Many of the attorneys prosecutingand defending criminal cases have limited experience.When the issue of mandatory sentencing is added to thismixture, what we often see are cases that are tried to a jurythat could have been settled with the assistance of the court.14 ARIZONA ATTORNEY APRIL 2007Most participants agree that the criminal settlement conferenceis one of the most useful interventions proposed andadopted by a court. The benefits include reducing the timeneeded to resolve cases, especially the delays occasioned bygoing to trial. Judges are available on short notice to do conwww.myazbar.org
Settlement Conferences in Criminal Courtferences, as they can often be set withinfive days of a request in a specialassignment or settlement division.The conference, a plea and even asentencing can be done on thesame day in a proper case where apresentence report is not needed.By judges often pointing out weaknesses and strengths ofcases, a balanced outcome hopefully can be achieved. Such con-ferences avoid a future evidentiary hearing in which a convicteddefendant claims inadequate representation because counsel didnot advise him or her of terms of an offer from the state.Most important, even if the conference does not end in aplea then or later, cases are processed on a professional, cooperativeand respectful basis, causing the parties to work togetherfor a period of time instead of doing battle in court. 13 This lastbenefit alone would appear to make the process worthwhile foradoption by a court in any jurisdiction. AZATendnotes1. E.g., 2003 The Center for DigitalGovernment’s “Best of Breed” award for thecourt’s online jury system; 2002 and 1998Computerworld’s Honors Program andSmithsonian Awards for visionary use ofinformation technology; 1997 Howell HeflinAward (State Justice Institute) for the court’sSelf-Service Center for pro se litigants (similarawards from American Bar Associationand National Association for CourtManagement); 1997 American JudicatureSociety Justice Award for innovations in publicservice, a nationwide court education center,reforms in civil justice procedures and thejury system (first time in 22-year history ofthe award that it was presented to a court);WILLIAM E. HEWITT, GEOFF GALLAS, &BARRY MAHONEY, SIX PROFILES OFSUCCESSFUL COURTS 87-102 (NationalCenter for State Courts, Williamsburg, Va.,1990) (highlighting the Phoenix programknown as fast-track as a delay prevention tooland an example of excellence in civil casemanagement). See also, B. Michael Dann &George Logan III, Jury Reform: The ArizonaExperience, 79 JUDICATURE 280 (1996); B.Michael Dann, “Learning Lessons” and“Speaking Rights”: Creating Educated andDemocratic Juries, 68 IND. L.J. 1229 (1993).Judge Dann, a Superior Court, MaricopaCounty, trial judge for 20 years, wasPresiding Judge of the Court during1985–1990. He and his committee wereresponsible for implementing with theArizona Supreme Court approval of many ofthe jury reforms for which this Court andArizona are noted. See also B. Michael Dann& Valerie Hans, Recent Evaluative Researchon Jury Trial Innovations, 41COURT REV. 12(2004); Tim Eigo, O Pioneer: Michael DannShapes Jury Reform for a New Century, ARIZ.ATT’Y, Feb. 2001, at 18.2. The Dann articles, supra note 1.3. Exhaustive research on the issue was not conducted,but Dade County (Miami) must beone of the earliest. Anne M. Heinz & WayneA. Kerstetler, Pretrial Settlement Conference:Evaluation of a Reform in Plea Bargaining,13 LAW & SOC’Y REV’W 349 (1979) (discussinga yearlong test of settlement conferencesin criminal cases in Dade County; allnegotiations took place before a judge, victimand defendant and usually resulted in at leastan outline of a settlement). See also JeniaIontcheva Turner, Judicial Participation inPlea Negotiations: A Comparative View, 54AM. J. COMP. L. 199 (2006) (analyzingGermany, Florida and Connecticut systems);Hon. J. Richardson Johnson, ImplementingA Circuit Court Trial Division, 78 MICH.B.J. 688 (1999) (discussing settlement conferencesin the criminal trial division); CourtAuthorizes Settlement Conferences inCriminal Cases, MONT. L. 16 (Mar. 19,1994) (conducting settlement conferences incomplex criminal cases (more than 16 days)in U.S. District Court for the District ofMontana); Kings County (Hansford-LocalRule 522); INYO County (Independence-Local Rule 10.1) and Imperial County (ElCentro-Local Rule 12.05) have Local Rulesproviding for settlement conferences in criminalcases which appear to be mandatory;Marureen E. Laflin, Remarks On Case-Management Criminal Mediation, 40 IDAHOL. REV. 571 (2004) (judges using mediationskills to conduct mediation of criminal casesin Idaho). It has been confirmed that at thistime the National Center for State Courtsdoes not statistically track criminal (or civil)settlement conference statistics on thenation’s state and local courts.4. Then-Presiding Criminal Department JudgeRonald S. Reinstein was instrumental inadvocating to the Arizona Supreme Courtthe adoption of Rule 17.4 (a) providing forsettlement conferences in criminal cases. Hewas joined in doing such conferences byAssociate Presiding Criminal DepartmentJudge Greg Martin and Judges MichaelWilkinson and Thomas O’Toole.5. Superior Court, Maricopa County, Petitionto Amend Rule 17.4 (a), Arizona Rules ofCriminal Procedure, prepared by JudgeReinstein, filed Sept. 6, 1996, at 2.Interestingly, prosecutors, citing, inter alia,separation of powers concerns, were unanimouslyagainst the proposal. See Comment ofRichard M. Romley, then-Maricopa CountyAttorney, filed Nov. 8, 1996; Comment ofKerry G. Wangberg, City of PhoenixProsecutor, filed Nov. 6, 1996.6. Arizona defines “beyond a reasonable doubt”to jurors as “proof that leaves you firmly convincedof the defendant’s guilt.” State v.Portillo, 898 P.2d 970, 974 (Ariz. 1995).7. Court statistics show the initial 40 percentsettlement rate within three days of a settlementconference. The court does not keeprecords of settlements occurring after threedays. The other figures represent a fairly wellfoundededucated guess by attorneys andjudges who participate in such conferencesand court administrators who track cases. Forother statistics cited in the article, seewww.superiorcourt.maricopa.gov by referencingthe public information site.8. Comment of Judge Reinstein filed with theArizona Supreme Court April 2, 1999, at1–2, setting forth the settlement statistics asof that date.9. Id.10. In Superior Court, Maricopa County, onlytwo percent of all filed criminal cases go totrial. Timelines for trying criminal in-custodycases must be resolved within 150 days ofarraignment, out-of-custody cases have a180-day period, capital cases (which are notcomplex) may extend to 18 months, andcomplex criminal cases must be resolvedwithin 260 days of arraignment. 16A A.R.S.Rules of Crim. Proc. Rule 8.11. Supra note 5.12. Dann & Logan, supra note 1, at 286.13. Similar benefits were described by thenlongtermMaricopa County Deputy PublicDefender Donna Lee Elm in a Commentfiled April 2, 1999, with the Supreme Courtpraising the two-year experiment under Rule17.4(a) and urging its permanent adoption.At that time, she supervised one-quarter ofthe office’s criminal defense practitioners.16 ARIZONA ATTORNEY APRIL 2007www.myazbar.org
Page 1 and 2: It is no exaggeration to say thatth
Page 3 and 4: Settlement Conferences in Criminal
Page 5: trial date. The effect of this poli

Settlement Conferences in Criminal Court - Lawyers

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?