Colorado Supreme Court sides with Pueblo DA, rules courts cannot order mediation

The Colorado Supreme Court sided with the 10th Judicial District Attorney’s Office, ruling on Feb. 27 that Colorado courts cannot force a district attorney’s office to participate in mediation.

A Pueblo trial court had previously ordered the Pueblo County DA’s office to participate in mediation with attorneys representing James Justice, who faces a wide range of criminal charges including attempted first-degree murder, first-degree assault, second-degree assault, use of explosives or incendiary devices, and several others in four separate court cases, according to a case opinion authored by Justice Carlos Samour of the Colorado Supreme Court.

Justice was on bond and contemplating a previous plea agreement that would apply to all three cases when he was arrested on the charges that encompass the fourth case, according to the opinion.

After charges were filed, the DA’s office offered a modified plea agreement less favorable to the defendant, according to Samour, which was then rejected by Justice.

Justice’s family hired private counsel to represent him in one of the four cases, although the Colorado State Public Defender’s Office continued to represent him in the other three.

Because the DA refused to offer a “more lenient” plea agreement, Justice’s private counsel filed a motion seeking compulsory mediation in all four cases. In the motion, the attorney argued that there were a “number of serious charges,” some of which carried mandatory prison sentences, and that “mediation would create the opportunity for all parties to have a frank exchange regarding their various positions[s] and allow an objective person to give input on possible ways those positions might be reconciled.”

The motion was also supported by the deputy public defender representing Justice.

In a hearing, the court agreed with the motion and orally ordered mediation over the objections of the deputy DA representing the state, stating it had the authority to do so, and that given the number of cases pending and jury trials set, it was appropriate “to at least attempt” mediation.

The court clarified that, while it was not requiring the state to extend a plea offer, it did expect them to make “a good faith attempt to see if there’s some way to work these cases out.”

The court listed reasons such as the time required by community members to sit on a jury for multiple jury trials, staffing concerns for the district attorney’s office, and the willingness of the defendant to consider pleading guilty.

A week later, Samour wrote, the state filed a motion to vacate the mediation order, arguing that the order violated the separation of powers doctrine enshrined in Article III of the Colorado Constitution, specifically arguing that it was improper for the court, which is part of the judicial branch, to interfere with their office, which is part of the executive branch.

Additionally, they argued that the court had no authority to order them to participate in “mediation plea discussions.” Rather, the motion argued, under Colorado law, they may, but are not required to, “engage in plea discussions for the purpose of reaching a plea agreement.”

However, the court declined to drop the mediation order and ordered both parties to set a date and time with the appointed mediator. Parties were also required to provide to the mediator a “confidential settlement agreement,” along with information including their “strengths and weaknesses” along with those perceived by the other side, and a synopsis of facts such as discovery for the case.

In a court filing, the DA’s office appealed to the Colorado Supreme Court, which sided with the DA’s office in the majority decision written by Samour.

In it, Samour argues that the DA’s office is “without adequate remedy” on appeal of any decision reached during a mediation they were forced to take part in, as “requiring the people to raise the issue on direct appeal, after the proverbial ship has sailed and compulsory mediation has already occurred, would provide no relief.”

Secondly, Samour wrote, the question has the potential to impact many criminal cases throughout the state, as “multiple judicial districts appear to have ordered mediation in criminal cases in the past,” and defense counsel admitted they have participated in court-ordered mediation in the 3rd and 16th Districts, covering Las Animas and Huerfano counties and Bent, Crowley and Otero counties, respectively.

In the past, the state Supreme Court declined to hear a similar case out of the 4th Judicial District, which serves El Paso and Teller Counties.

“Including the two cases before us, which are from the 10th Judicial District, the people are objecting to a past or present practice in as many as four judicial districts, and neither our court nor the court of appeals has ever (previously) resolved this issue,” wrote Samour. “We believe the time has come for us to speak on it.”

In the decision, the Colorado Supreme Court declined to rule whether the district court had violated separation of powers in the case. However, the court firmly ruled that while a DA’s office may engage in plea discussions, they are also necessarily vested with the discretion to choose to refrain from such if they believe it would “not serve the effective administration of criminal justice.”

“The decision to have or forgo plea discussions is the People’s and the People’s alone,” Samour wrote. “It follows that a trial court can neither force the people to engage in plea discussions nor prevent the People from engaging in plea discussions.

“Further, when the People do decide to participate in plea discussions, they have the discretion to determine what type of offer to make … the People may decide to make a favorable recommendation concerning the charges filed and/or the applicable sentences in exchange for the defendant’s guilty plea to one or more offenses.

“Of course, the defendant may reject any offer made — it’s the defendant’s absolute prerogative to do so. What the defendant cannot do is enlist the court’s assistance via an order for mediation to try to force the People to extend an offer or to consider a more favorable offer. When the People extend an offer in a case, the court has no role in the process.”

District Attorney Jeff Chostner

Tenth Judicial District Attorney Jeff Chostner stated he was happy with the decision.

“We believe this to be a significant decision that will have a statewide impact. There are limits to what a court can order and those limits were exceeded in this case,” Chostner told the Chieftain in an email.

“The Judiciary cannot order a prosecutor to enter into a process or resolution that it does not believe is in the best interests of the People. We have entered into mediation many times in the past and have found it, on occasion, to be a helpful process. But not always, and the People as represented by our Office should not be forced into a process it doesn’t believe protects the People. We are greatly heartened by this decision.”

James Justice will next appear in court on March 1 for a review hearing on all four of his cases in the court of Judge Allison Ernst.

All suspects are innocent until proven guilty in court. Arrests and charges are merely accusations by law enforcement until, and unless, a suspect is convicted of a crime.

Questions, comments, or story tips? Contact Justin at Follow him on Twitter @jayreutter1.

This article originally appeared on The Pueblo Chieftain: Colorado Supreme Court rules courts cannot order mediation

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