Arizona Attorney - March 2014

accepted at that time or before a subsequent not guilty arraignment will be withdrawn. If the RCC plea is not accepted, the defense still has an opportunity to request a deviation from any newly offered plea (usually a more harsh offer than the RCC offer) to get a plea to reduced charges, to get a reduced prison term, or a “no agreements” plea (up to judge whether prison or probation) or a plea to probation.

A settlement conference is often used by the parties to determine if a defendant is interested in any plea where the RCC offer has not been accepted and has been withdrawn by the State. 15 There is still a high rate of settlement even with this second tougher plea offer. To the credit of the County Attorney, new pleas are offered (where an RCC offer has been rejected) and any defense requests (called deviations) to modify this new offer are often accepted and restaffed by prosecutors, which may or may not result in the granting of the deviation request.

At the RCC hearing defense counsel collect discovery from the prosecutor, meet with their clients to discuss their options: ( 1) to hold a preliminary hearing to establish probable cause; ( 2) to waive their right to the preliminary hearing and agree to the state’s RCC best offer; or ( 3) to waive their right to the preliminary hearing but plead “Not Guilty,” which often produces a settlement conference when the case is assigned to a criminal trial division to discuss the new plea that is usually offered by the state.

Why Do Them?
Tracking Success Rates

Since the implementation of settlement
conferences in criminal cases, this court has
struggled with devising reporting mecha-
nisms to count the number of settlement
conferences and measure their effective-
ness. This is due to some of the unique
characteristics of scheduling them and the
effects they have beyond the time spent in
the event itself. So until recently the result
has been a chronic undercounting of the
successfulness of settlement conferences.

A common example of this is when a plea is taken days after a settlement conference is held and at a subsequent court hearing. A common dynamic is that the parties fail to agree at the end of a settlement conference, but shortly thereafter, upon reflection, realize that the proposed resolution is workable. We believe through experience that it is the communication that occurs within the settlement conference that causes this change of mind, and so when no other substantive activity in the case has occurred, that early resolution should be credited to the settlement conference. However, the statistical tracking within the court’s case management system would not count that situation as a plea attributed to the settlement conference. There has also been an inconsistency in how judicial staff recorded whether settlement conferences were held, vacated, continued or resulted in a plea.

So after months of study and the focus of a workgroup, 16 the Criminal Department devised a new standard for data entry related to settlement conferences, and a new statistical methodology for counting their results. This was implemented for events that occurred in July 2013 and anytime thereafter. Here is the standard.

Now, if a case pleads after a settlement
conference is held but prior to or at the
next court hearing, the settlement confer-
ence is considered to be the cause and thus
successful. For the first time, we can meas-
ure the actual effectiveness of these events
and whether they are in fact a wise invest-
ment of judicial resources. To determine
the true success rate over time,
Criminal Court administration
applied the new methodology
retroactively to data from all of
FY 2013, and compared that to
previously published statistical
reports that used the prior
methodology, which only count-
ed as successful pleas entered
on the date of the settlement
conference. Under the old sys-
tem, the success rate of the
Department’s settlement confer-
ences was reported at 39 per-
cent. But when the new sys-
tem of counting was applied, it became
apparent that 56 percent of settlement
conferences held resulted in a plea. That is
a 44 percent difference between the two
methodologies, which is significant when
evaluating the success, or lack thereof,
of the concept of criminal settlement con-
ferences.

But is it time well spent? Evaluating the true value of settlement conferences is challenging. Those that result in a change of plea clearly reduce the length of time a case is unresolved. But the volume of that reduction is difficult to measure because it is conjecture to identify how much later the case would have remained unresolved. Would it have pleaded at the next court hearing, or would it have stayed unresolved until the eve of trial? How much of the decision to resolve was dependent on the unique communications dynamic that occur in a settlement conference?

The interaction of the parties in a settlement conference is not easily replicated outside of that format. There is no other court event where opposing parties and a judicial officer have a candid and somewhat informal conversation (although reported) about how to resolve the case prior to trial. It is not, in our view, unreasonable to assume that the uniqueness of settlement conferences significantly accelerates case disposition. And we know that more than half of the cases that have settlement conferences resolve via plea shortly thereafter. So the question then becomes how does a judicial officer effectively manage his or her time so that capacity for these events is increased, yet they do not affect trial availability? We believe that one approach is