Here is what the judge would do

By Craig Wismer
Posted 11/17/19

I earlier wrote a guest commentary inviting you to be the judge. I told you that I’d follow-up and let you know how I address the situation, so here it is.

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Here is what the judge would do

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I earlier wrote a guest commentary inviting you to be the judge. I told you that I’d follow-up and let you know how I address the situation, so here it is.

In the previous commentary I described a common scenario involving criminal arraignment hearings in limited jurisdiction courts, such as Arrowhead. Defendants appear in order to have the judge read the charges brought against them, advise them of their constitutional rights, have them enter a plea, assign release conditions and, if applicable, ensure compliance with victim rights provisions of the Arizona Constitution and statutes.

I also explained that in limited jurisdiction courts defendants often times appear without the benefit of legal counsel and have little understanding of their options. As such, it is by no means unusual for defendants to enter pleas of guilty to criminal charges which, by doing so, foreclosures the opportunity for them in the future to meet with the prosecutor. It would be at that meeting that defendants would learn if the state might be willing to make an offer for the disposition of the charges that could work in their favor.

The question I asked in my previous commentary was this: As the judge, provided that you’ve complied with procedural and statutory requirements (in other words you’ve done your job), would you accept a guilty plea under the circumstances I described or, in the alternative, take some extra time to explain options to defendants?

As for me, I don’t accept a guilty plea before ensuring that defendants truly comprehend what is occurring and that, should I accept it, they will have a criminal conviction and criminal record, which could affect such important matters as current or future professional licensing and employment. Without giving any assurances as to the outcome of a meeting with the prosecutor, because after all I don’t speak for the state, I let them know that the only way it will be set is to exercise their constitutional right to enter a plea of not guilty.

If they like what the state offers, they may accept it. If they don’t, they retain full authority to reject it, put the state to its burden of proof and have the case set for disposition by trial. In other words, they lose no options by pleading not guilty and, in actuality, may gain some. But the opportunity to explore possible options, as I said before, is lost if they plead guilty at their arraignment hearing.

Having said what I just did, a judge needs to be cautious about going too far. They are not to give legal advice nor should they, in my opinion, recommend that defendants steer their case in any particular direction. It is a defendant’s responsibility to enter a plea to the charge(s), not the judge (unless a defendant refuses to do so). Therefore, if a defendant insists on entering a guilty plea, I will set the case for a guilty plea hearing.

Doing so will allow the state to contact any alleged victims in order to obtain input they wish to offer concerning the sentence I will impose, allege prior convictions, if applicable, and, I don’t deny, give the defendant a chance to think about what they did in court and determine if they still want to move forward with the guilty plea.

If, when they come back, they have a change of heart, perhaps they are now represented by legal counsel, I will accept a change of plea to not guilty and set the case for that meeting with the prosecutor.

Craig Wismer is a judge in the Arrowhead Justice Court.