State Supreme Court says judges may not force mediation in criminal cases

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.”

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