The Third District Court in Salt Lake County began an Early Case Resolution (“ECR”) last month following an outcry of opposition from UACDL and individual criminal defense attorneys. Salt Lake County District Attorney’s Office (“DA”) had been discussing ECR for the past two years but planning did not begin in earnest until recently. County officials invited leaders from the Salt Lake Legal Defender Association (“SLLDA”) to participate in the planning meetings because the ECR program included using public defenders to initially advise criminal defendants about the ECR program. Defense attorneys’ outcries resulted when the Third District Court suddenly announced that ECR would begin shortly after the first of the year.

Unknown to most criminal defense lawyers, two years ago, the County received a $750,000 grant to develop a system of quickly identifying cases that are likely to result in guilty pleas and to resolve them in a short period of time. The grant required that the money be spent within two years. However, planning meetings did not begin until the summer of 2010, and those meetings do not appear to have discussed the specifics of the program in any detail. But, because the two-year funding requirement was fast approaching, County officials began feeling pressure to implement ECR.

Although the County invited SLLDA to the planning meetings, the County never sought SLLDA’s advice or approval about ECR or whether such a program would work. Rather, the County informed SLLDA Director Patrick Anderson that because ECR would be implemented regardless of any of SLLDA’s concerns, SLLDA needed to jump on board. Patrick was supremely aware of the many constitutional rights that a fast-track program implicated. As a result, he and his staff attended planning meetings and did all they could to ensure to protect criminal defendants’ constitutional rights.

As the planning meetings began last summer, Patrick contacted UACDL because of his concerns about how ECR would affect private practice attorneys in addition to the threats to criminal defendants’ constitutional rights. He suggested that UACDL appoint one or two private practice attorneys to attend planning meetings and to assert themselves into the discussions. UACDL provided the names of two private practice attorneys to the planning committee but these attorneys were not officially invited to meetings, apparently, because the County had not formally included them in the planning process. Thus, they did not receive notice of scheduled meetings and other planning efforts.

Defense lawyers became alarmed when the County announced that ECR would be implemented just after the beginning of 2011. The defense bar objected that private practice defense attorneys had been largely left out of the planning and that they knew few, if any, details about how the program would operate.

To address defense attorneys’ concerns, Third District Presiding Robert Hilder and Associate Presiding Judge Royal Hanson convened an informational meeting on January 19, 2011. About 75 people attended the meeting with about 40 of them being UACDL members. Also present were prosecutors Sim Gill, Paul Parker and Mike Postma of the DA’s Office as well as several members of the press, court employees, County officials, and pretrial services officials.

Although not specifically mentioned at the meeting, it was apparent that ECR planning had not started in earnest until Sim Gill’s election as DA in November 2010. AS with SLLDA, County officials told Sim Gill that ECR would be implemented regardless of his personal views and so he needed to prepare his office for the program to begin shortly. Because the grant money needed to be spent within two years of receipt, County officials were determined to implement the program immediately and work out problems when they arose after implementation.

Numerous other UACDL members, including past presidents, asked probing questions but often received no firm answers. However, a few details emerged from the meeting:

• Anyone can opt out of ECR for any or no reason at all;

• SLLDA attorneys will only represent indigent persons;

• Pretrial services will screen defendants for indigency but the trial judge will ultimately decide who is indigent;

• Non-indigent persons will still be allowed to retain private counsel but must secure an attorney on their own;

• Defendants will have at least 30 days to decide whether to accept initial plea offers;

• The DA will provide ECR participants all discovery free of charge before anyone is allowed to plead guilty;

• Both prosecutors and defense attorneys will be informed that if any question arises about the defendant’s guilt, mental competency, or the strength of the evidence, defendants will not be involved in the program;

• Judges will serve for one year on ECR and then rotate out;

• Judge Vernice Trease and Judge Katie Bernards-Goodman will be the first two judges assigned to ECR;

• All cases will be handled at the Matheson courthouse initially but later West Jordan may be included in the program;

• As a general rule, initial plea offers will be the best offers given to defendants to encourage them to plead guilty;

• Unusual circumstances may justify equally generous offers subsequently to defendants who opt out of ECR based on such matters as newly discovered evidence, weaknesses in the state’s case, and opportunities for rehabilitation.

• Prosecutors promised to provide defense attorneys an informational packet as soon as possible;

• Prosecutors plan to resolve 10,000 cases annually through ECR.

The above article was taken from Kent Hart’s original article in the UACDL’s Defender Magazine. Kent Hart is the Executive Director of Utah Association of Criminal Defense Lawyers