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Colorado Supreme Court Justices Carlos A. Samour Jr., left, and Richard L. Gabriel listen to an argument during a Courts in the Community event held at Pine Creek High School in Colorado Springs on Thursday, Nov. 17, 2022.

Resolving a question it had never addressed before, the Colorado Supreme Court ruled on Monday that trial judges may not order the parties in a criminal case to participate in mediation to potentially reach a plea agreement.

Although prosecutors and defendants can voluntarily decide to sit down with a neutral third party and discuss how to resolve the case, the justices emphasized that state law does not require district attorneys to engage in plea negotiations in the first place. Furthermore, the law prohibits judges from involving themselves in those discussions.

"That the People are vested with the discretion to engage in plea discussions necessarily means that they are vested with the discretion to refrain from engaging in plea discussions," wrote Justice Carlos A. Samour Jr., referring to the prosecution. "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."

Jeff Chostner, the district attorney for Pueblo County, said his office has engaged in mediation before and found it to be helpful sometimes.

However, "there are limits to what a court can order and those limits were exceeded in this case. 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," he said.

The unusual circumstances arose from four criminal proceedings in Pueblo County against James Lee Justice, who faces a host of serious charges. He stands accused of shooting at police officers, throwing a bomb into his neighbor's yard and exploding another bomb near responding officers. The charges against Justice include assault and attempted murder.

The defense moved for the trial judge to "order mediation" in the four pending cases, arguing that it would "create the opportunity for all parties to have a frank exchange" about their positions, and enable an objective third party to provide feedback.

On Aug. 17, 2022, District Court Judge Allison P. Ernst held a hearing on the request.

"I think I can order mediation in this case," she said to the prosecutor. "Me ordering mediation does not mean you have to make an offer, but I'd like a good faith attempt to see if there's some way to work these cases out."

The district attorney's office subsequently asked Ernst to reconsider, raising the issue of separation of powers. One of Justice's attorneys, Michael S. Emmons, responded to say he has "personally participated" in court-ordered mediations of criminal cases in multiple judicial districts, and argued Ernst had not interfered with any decision-making by the prosecution as an arm of the executive branch.

The judge agreed, clarifying she was "not directing (an) investigation or prosecution" of Justice's cases, and suggested Justice's request for mediation indicated he was willing to plead guilty under the right conditions.

"The Court is very aware that there is no guarantee of success, but believes it is worth a morning or afternoon of the time of the parties to mediate in good faith," Ernst wrote.

She ordered the parties to contact the mediator, retired Pueblo County Judge Scott B. Epstein, to provide him with the relevant materials. Epstein, in emailing the parties, asked for a "confidential settlement statement" and a description of each side's "strengths and weaknesses." He also invited them to submit a CD of evidence.

Prosecutors in Pueblo County then appealed directly to the Supreme Court, arguing Ernst's directive was "well-intentioned," but impermissibly told the district attorney's office how to use its resources in prosecuting Justice. They contended that there were logistical concerns with mediation, but more fundamentally, a judge's role is not to decide for the prosecution whether to engage in plea negotiations.

"In other words, can a criminal court require mediation as a prerequisite to proceed with a case in the criminal adjudicative process and/or to get to trial?" wrote Megan Rasband on behalf of Chostner's office. "An affirmative answer unquestionably usurps the prosecution’s executive function and creates an un-remediable separation of powers violation."

The Colorado Attorney General's Office, representing Ernst, cited the state's Dispute Resolution Act, which generally empowers judges to "refer any case for mediation services." It also cautioned the Supreme Court against being the "first jurisdiction" in the country to decide that court-ordered mediation in criminal cases violates the separation of powers.

The Supreme Court was unmoved by the attorney general's argument. First, the Dispute Resolution Act governs civil, not criminal, cases, wrote Samour in the Feb. 27 opinion. Second, the state's criminal law does not authorize court-ordered mediation. District attorneys "may" — not "must" — engage in plea negotiations and trial judges, by contrast, "shall not participate" in such discussions.

"Moreover, the court issued the mediation order at Justice’s behest, after he was unsuccessful in obtaining a more favorable offer from the People. Under these circumstances, requiring the People to participate in mediation was tantamount to ordering them to consider a different offer," Samour added.

The court based its decision, in part, on its own ruling from 2010, Crumb v. People, in which the pressure to resolve a case cut in the other direction. There, a judge suggested a defendant should take a deal from the prosecution in lieu of "significant time" in prison following a trial. The Supreme Court decided the judge had violated the prohibition against participating in plea discussions.

The case is People v. Justice.

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