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Bar News - September 20, 2013

Settlement Judge Pilot Draws Some Resistance


County attorneys across the state are keeping a close eye on a new program that encourages prosecutors and defense lawyers to settle criminal cases with the help of a mediator.

The Settlement Judge program, launched as a pilot in Hillsborough County Superior Court South in July, is one of several felony case flow management initiatives being explored by a subcommittee of judges and court administrators, led by Superior Court Chief Justice Tina Nadeau.

The mediations, called settlement conferences, bring together attorneys, the defendant and, when possible, the victim to negotiate sentencing and restitution before a neutral judge. The pilot is aimed at the growing backlog of criminal cases on the docket in Nashua, where it takes an average of 335 days for a felony to move from filing to completion, according to court statistics.

“We know that 97 percent of all criminal cases resolve in a negotiated plea,” Nadeau said. “We want to find ways to get to those cases earlier, instead of just putting them on the trial docket and waiting four to six months, and then they plead on the day of trial.”

Two months in, it’s too soon to know whether the pilot is meeting the objective — that is, to show how felony mediation can, as Nadeau puts it, “get the same or better justice, sooner.”

However, it’s already drawing unfavorable reviews from Hillsborough County Attorney Patricia LaFrance, who said settlement conferences represent a “huge change” in how the state’s plea offers are negotiated.

“When I was a prosecutor, you made an offer, and if the defense attorney had justification for why the offer should be lower, they called us, they sent us letters, they sent us mental health records to say, ‘Here’s a reason for why he acted the way he did,’” LaFrance said. “It seems to me we should be working more towards that. We don’t need the judge to act as a referee.”

Carroll County Attorney Robin Gordon said LaFrance has been keeping her and other prosecutors “apprised of the difficulties she has encountered” with the pilot. Gordon said she’s concerned that settlement conferences will put pressure on prosecutors to be more accommodating than they otherwise might — or should be.

“It seems to be shaping up that the court or the judge is now acting as a party and expecting the state to make offers that are inappropriate, from our perspective,” Gordon said. “It then becomes the state’s responsibility that no one goes to jail or takes responsibility for what they’ve done.”

Nadeau said she anticipated some resistance to the Settlement Judge program, which is why “we’re not forcing it on anyone.” Participation is voluntary, she said — the trial judge, prosecutor or defense attorney can recommend a settlement conference at any point in the process, but both sides must agree to it.

“That way,” she said, “we can sort of experiment with it, see if it resolves cases quicker, see how the parties feel about it.”

Hillsborough South is a logical choice for any initiative that might speed up the resolution of criminal cases. The NH Superior Court is operating with 17 judges, five short of its statutory maximum, and the burden on the two full-time justices in Hillsborough County South has continued to grow. According to case management statistics cited by Nadeau in an April 2013 letter to the Senate Finance Committee, they each took on more than 1,500 new cases in 2012.

The Settlement Judge pilot is modeled on a similar program in Maricopa County, Arizona, which has been conducting criminal settlement conferences since 1997. According to the State Bar of Arizona, some 65 percent of Maricopa County’s felony cases go to settlement conference, with an annual settlement rate of 70-75 percent.

Nadeau has assigned retired Judge Kathleen McGuire to handle the informal sessions in Nashua, which usually take 30 minutes to an hour and are conducted in a jury room or empty courtroom.

A seasoned mediator and proponent of alternative sentencing, McGuire reviews the charges and weighs the strengths and weaknesses of the evidence. She explains to the defendant what prosecutors must prove and the maximum sentence he or she could face if the case went to trial. The prosecutor then gives an offer of proof, goes through the evidence, and makes a sentencing recommendation.

If the negotiations are successful, McGuire can take the plea and complete the case. If not, it goes back on the trial docket.

McGuire said hearing the evidence directly from the prosecutor, in a less-adversarial setting, could help persuade a defendant who is reluctant to accept a plea offer that includes incarceration. Likewise, she said, by meeting face-to-face with the defendant, prosecutors can consider factors that may justify reducing the charges or the sentence, leading to a speedier resolution.

“It’s useful for fashioning a sentence that is geared to the particular defendant and the circumstances of the case, which may be unusual,” she said.

Jacki Smith, managing attorney for New Hampshire Public Defender office in Nashua, said settlement conferences, which sometimes include statements by the defendant’s spouse or other family members, are “an opportunity to humanize our clients in ways that we’re not often allowed to do in the system.” While it’s hard to draw many conclusions at this stage of the pilot, she said, “if it’s going to be helpful to them in the disposition of their case, we’re happy to do it.”

LaFrance, on the other hand, says she’s been “very disappointed” in the process. Prosecutors from her office have agreed to settlement conferences in about a half-dozen cases, she said, only one of which resulted in a plea agreement. In that case, an armed robbery, the defendant expressed remorse and was “appropriately contrite.” It helped that, in the end, he agreed to the original plea offer, she said.

In the others, prosecutors were asked to reduce charges or lower their sentencing recommendations without being offered a compelling reason, she said. “From what I’m hearing from other prosecutors it’s, ‘the state should come down,’” LaFrance said. “It’s always, ‘The state is being unreasonable.’”

LaFrance said she has misgivings about the role of the victim in negotiations with the defendant, a concern echoed by Carroll County Attorney Robin Gordon.

“That’s the state’s job,” Gordon said. “You don’t put that on the shoulders of someone who has been victimized. It puts them in a terrible position.”

While formal guidelines for the conferences have yet to be established, one rule has raised red flags on both sides: attorneys must agree to keep the proceedings confidential. If mediation fails, nothing discussed can be used by either the prosecution or defense at trial or in subsequent negotiations.

McGuire said the conferences are “recorded, but not transcribed.” According to Nadeau, they are “negotiations with a facilitated mediator; they are not public proceedings.”

Smith said the confidentiality rule could be “very problematic,” if statements made by the victim contradict the evidence already on the table. “At the very least, we have to give our clients advice about whether something that comes up in these conferences is potentially exculpatory, and then we may have an obligation to go after it,” she said. “We have constitutional and ethical obligations to our clients that we cannot ignore.”

Nadeau acknowledges that any effort to speed up the disposition of criminal cases will require “a culture shift” by attorneys. But, she said, evidence from other states suggests it pays off: victims get closure and, in some cases, restitution more quickly; attorneys have more time to prepare cases that will go to trial; and police officers and other witnesses aren’t waiting at the courthouse for a hearing that may not take place.

Quicker resolution also means defendants spend less time in pretrial confinement, which saves tax dollars, while studies have shown it can help the rehabilitation process and reduce recidivism.

“It really sort of hits all the things we want to accomplish in criminal justice,” Nadeau said.

There is no set timeframe for evaluating the pilot or expanding it to other counties, according to Nadeau. She said she’ll review the guidelines used in Arizona and other states, such as Kentucky, that have more experience with settlement conferences.

McGuire’s input will also be an important consideration. McGuire said that in recent weeks, she’s noticed a slight drop in the number of settlements conferences she’s heard. But she remains optimistic.

“We’ll see,” she said. “There is some reluctance on both sides, but there is nothing to lose. I’m sure that once we do more of them that attitude will lessen.”

Brian Wallstin is a freelance reporter and contributor to Bar News.

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