to forge a plea for
the defendant. For that reason, not all
jurisdictions permit settlement conferences
in criminal cases. A good example is the
federal courts, where criminal settlement
conferences are shunned, and it is apparently unethical for judicial officers to conduct them. 3
We realized that if you were going to do
criminal settlement conferences, a judicial
officer had to do them. This was the situation in 1996 when a few judges on the
criminal bench in our court began to do
such conferences, which has now expanded
in 2013 and early 2014 to a court-wide
program in which more than 500 such
conferences are conducted each month. 4
These are done on a daily basis by judges
and commissioners assigned to the criminal
division and even by some retired judicial
officers and those formerly on a criminal
assignment still with the court, who can fit
in a settlement conference on their busy
non-criminal calendars.
Indeed, today we have a “Settlement
Conference on Demand” 5 system, in which
defense attorneys and prosecutors can
jointly ask for a settlement conference to
be conducted within 48 hours of their
request. That system allows lawyers to
choose a specific date and even a specific
time for their settlement conference and be
assured it will take place rather than be subjected to the limited availability of one judicial officer’s calendar. On the day of the
settlement conference, the event is assigned
to whichever judicial officer is available,
thus guaranteeing it will occur. This not
only increases certainty for the parties, but
also allows for earlier settings and therefore
earlier resolution of criminal cases.
Along with settlements on demand,
there is also a Plea on Demand policy. Each
day there is a judicial officer, usually a commissioner, assigned to take pleas requested
by the parties on a first-come first-serve
basis. Parties may request a day and time
for the taking of such pleas in lieu of setting
a future hearing in a particular division.
Important to note, the parties may still
stipulate that a certain judicial officer do
the sentencing irrespective of who is taking
the plea.
Given the time it takes to do such con-
ferences, and the loss of courtroom time
by judicial officers
conducting them,
are they worth
it? That is what
we explore in this
article.
The use of such
conferences is possible only because
of an innovative
Arizona Supreme
Court that authorized a two-year
pilot project in
1997 to determine
the feasibility of
permitting judicial
officers to participate in plea negotiations in a limited
capacity. 6 The court Comment to this
statewide experimental period cautioned
that it “expects that all lawyers—
prosecutors and defense counsel alike—will cooperate in the experimental use of this rule,
and that judges will avoid coercive behavior of any kind.” 7
This became a permanent program in
1999, and it is important to relate the
parameters of such conferences as explicitly
set forth in the then-newly adopted
Criminal Rule 17. 4(a):
Plea Negotiations. The Parties may
negotiate concerning, and reach an
agreement on, any aspect of the case.
At the request of either party, or sua
sponte, the court may, in its sole discretion, participate in settlement discussions by directing counsel having
authority to settle to participate in a
good faith discussion with the court
regarding a non-trial or non-jury trial
resolution which conforms to the
interests of justice. Before such discussions take place, the prosecutor shall
afford the victim an opportunity to
confer with the prosecutor concerning
a non-trial or non-jury trial resolution,
if they have not already conferred, and
shall inform the court and counsel of
any statement of position by the victim.
If the defendant is to be present at any
such settlement discussions, the victim
shall also be afforded the opportunity
to be present and to state his or her
position with respect to a non-trial
or non-jury trial settlement. The trial
judge shall only participate in settle-
ment discussions with the consent of
the parties. In all other cases, the dis-
cussions shall be before another judge
or a settlement division. If settlement
discussions do not result in an agree-
ment the case shall be returned to the
trial judge.
How Conducted
All this was explained in a prior article published in this magazine. 8 Also set forth
there was that although judicial officers
conduct such conferences using their own
style and approach, what is common
among them is: ( 1) advising the defendant
what the charges are and whether proba-tion-eligible and the jail and/or prison sentencing ranges of each charge; ( 2) having
the prosecutor advise who is coming to testify and what they are going to say in connection with each charge and of any admissions made by the defendant; and ( 3) setting forth the plea offer presently on the
table and how long the prosecutor intends
to keep it open. It is hoped that all this will
give the defendant, who is there with her
attorney and the prosecutor, the ability to
weigh the pros and cons of proceeding to
trial or taking a plea. Settlement conferences in capital cases also continue to be
Criminal Settlement Conferences on Demand
TODAY WE HAVE A “SETTLEMENT
CONFERENCE ON DEMAND” SYSTEM, IN
WHICH DEFENSE ATTORNEYS AND PROSECU-
TORS CAN JOINTLY ASK FOR A SETTLE-
MENT CONFERENCE TO BE CONDUCTED
WITHIN 48 HOURS OF THEIR REQUEST.
