Arizona Attorney - March 2014

endnotes

1. The number of criminal cases filed in FY 2012 was 33,072 and in FY 2013 30,288. The court is comprised of 95 judges, 59 commissioners and 1,406 remaining employees in the Judicial Branch, including administrators, bailiffs, judicial assistants and clerks of court. In addition more than 4,000 employees support the Judicial Branch.

2. See n. 18 infra.

3. Rule 11(c)( 1), FED.R.CRIM.PROC., states in part, “An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement.

The court must not participate in these discussions.” And see United States v. Davila, 133 S. Ct. 2139 (2013) (despite improper judicial participation in plea negotiations setting aside the plea not necessary where the record shows no prejudice to the defendant’s decision to plead guilty).

4. All statistics reported herein are found in the Court’s Annual Report. See for all posted reports: www.superiorcourt.maricopa.gov/MediaRelationsDepartment/Publications/reports.asp.

5. Id.

6. For background of Arizona’s criminal settlement program, see the first article published by Judge Gottsfield and Mitch Michkowski, Ph.D.: Settlement Conferences in Criminal Court, 43 ARIZ. ATT’Y 8 (April 2007). The article was also published at Viewpoint: Settlement Conferences Help Resolve Criminal Cases, 90 JUDICATURE 196 (March-April 2007), and 22 COURT MANAGER 17 (Summer 2007).

7. Comment to experimental Rule 17. 4(a) effective from Feb. 1, 1997, through Jan. 31, 1999.

8. See n. 6 supra. There is in our court a proceeding similar to a settlement conference, the so-called

Donald hearing, named after State v. Donald, 10 P. 3d 1193 (Ariz. Ct. App. 2000), rev. denied, cert. denied, 534 U.S. 825 (2001), as modified by State ex rel. Thomas v. Rayes, 153 P. 3d 1040 (Ariz.

2007). In effect, the defendant is explained the sentencing he is facing if convicted which may or may not have a sentencing offer attached to it. It often is used to determine if the defendant is interested in a plea at all.

9. See generally R.L. Gottsfield & Marianne Alcorn, The Capital Case Crisis in Maricopa County and What (Little) We can Do About It, 45 ARIZ. ATT’Y 20 (Part One, April 2009) and 45 ARIZ. ATT’Y 22 (Part Two, May 2009). See also Robert Gottsfield, Douglas Rayes & Patricia Starr, A Court’s Remarkable Recovery From a Capital Case Crisis, 48 ARIZ. ATT’Y 19 (Nov. 2011).

10. There are two exceptions: ( 1) Statements may be admitted “in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together”; and ( 2) “in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.” And see State v. Campoy, 207 P. 3d 792 (Ariz. Ct. App. 2009), rev. denied; Rule 17. 4(f), ARIZ.R.CRIM.P., and Evidence Rule 408. That Evidence Rule 408 can also apply in criminal cases see Stephen A. Saltzburg, Federal Rule of Evidence and Criminal Cases, CRIM. J. (ABA Spring 2011) at 41.

11. See n. 6 supra.

12. At present staff examines the outcome of each criminal settlement conference by daily review of the minute entries and tracks whether those conferences ended in a plea by or at the next scheduled hearing date.

13. Supra n. 6 at 43 ARIZ. ATT’Y 12.

14. Interestingly, factors (b) through (d), as reasons why a settlement conference does not occur, account for less than five percent of all criminal cases filed.

15. Supra n. 8. See also discussion of Donald hearings.

16. The authors recognize the members of the workgroup who participated in studying settlement conferences and how we report them: Faviola Ortiz (former bailiff and now judicial assistant to Judge Gottsfield); Sandra Mena (Criminal Judicial Staff Trainer); Tamara Ogden (Criminal Department Supervisor); Paula Collins (Criminal Department Deputy Court Administrator); and Diana Hegyi (Director of Research and Planning Department).

17. Judicial Branch News, Oct. 2011 at 1.

18. Civil Statistics FY 2007. See website at n. 4 supra.

19. Through October, the FY 2014 filings total 12,177. That’s 17 percent above what was filed
through October last year. So if that rate remained constant for the rest of the fiscal year, the FY
2014 total for new filings would be more than 35,400.
by defense
counsel to temper the post-RCC plea is
laudable.

Finally, we believe criminal settlement con-
ferences not only benefit the justice system
at the individual case level, but they also
foster a more just and respectful dispute
resolution environment overall. The con-
cepts of candor, professionalism and
respect for all parties are all integral to the
culture of settlement conferences, and
involving judicial officers provides a level of
legitimacy that can’t be matched.