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This Ain’t Texas

D.A. Confidential put up a post yesterday about the role of a judge and the widely held belief among criminal defendants that speaking to the judge might somehow help their case. The judge he appears in front of apparently gives a speech instead of taking a side in plea negotiations. D.A. Confidential concludes his post with these words:

A long docket this morning, and I bet at least one inmate will ask to speak to the judge, hoping he’ll sweeten the deal and take the defendant’s side in plea negotiations. The judge won’t, of course, he’ll give his usual speech.

But think about it the other way around. Imagine if the judge weighed in on our side, pressured the defendant to take our deal. That possibility, I trust, makes it clear why a judge must remain neutral.

Although I’ve never practiced in Texas, the post seems to suggest there’s one big way things differ between Arizona and Texas. Here, we have something called a “Donald” advisement. We also have settlement conferences. Every county superior court I’ve appeared in does both. Maricopa County Superior Court goes so far as to order that the parties in every single case participate in a settlement conference. The judges even set deadlines for it.

In State v. Donald, Arizona’s court of appeals made it so a trial court can order the state to reinstate the original plea offer in certain circumstances. The defendant may not have been properly advised about what he faced losing at trial. What we call a Donald advisement is simply telling a defendant on the record what the plea agreement is and what his exposure is. It should be simple, but it can be a very coercive thing. Sometimes, the numbers alone make it that way. Sometimes, judges can’t help but offer their opinions. They may emphasize the benefit of the plea or even tell the defendant it’s a generous offer. At least one judge tries to get defendants say why they won’t accept the offer.

Settlement conferences can be even more coercive. Usually, it starts with the parties meeting with the judge in chambers and explaining their positions. The judge, who fortunately can’t be the trial judge without the consent of the parties, typically picks a side. Sometimes, the judge tells the state the offer needs to improve. I’ve had judges attack prosecutors for making ridiculously harsh offers or even call prosecutors’ supervisors to complain about office policies. On the other hand, I’ve also had plenty of judges tell me they think the offer is fair and my client should take it.

On the record, the judge usually gives a Donald advisement and tells the defendant his opinion about the plea. The defendant gets to talk not just with the judge, but with the prosecutor. Clients usually love settlement conferences. They can ask questions and tell their side of things, and it can’t be used against them because it’s in the context of plea negotiations. It can put the defense lawyer in an awkward position, though, especially when the plea really is a great deal and everyone but the client sees that.

A settlement conference can look a lot like a set up, and whenever I think the hearing is going to result in pressure on my client, I tell him in advance. I explain that he can talk to the judge all he wants, but most settlement conferences result in pleas. It’s worst for the defense lawyer when the plea has a huge benefit. When the client is facing life and has a deal to a few years, you really don’t want to make a record of how crappy the plea is. Talking your client out of a lifesaving offer in open court is an ineffective claim waiting to happen. Watching other people pressure the person who has put their life in your hands is terrible though. It’s all about balancing the various factors at play and using professional judgment.

When D.A. Confidential asks us to imagine if the judge weighed in on the state’s side and pressured the defendant to take its deal, I don’t have to imagine at all. Any Arizona criminal defense attorney is going to know exactly what it’s like.

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