Kentucky Court of Justice
Judges successfully mediate felony cases for first time in Boyd County
FRANKFORT, Ky. — Boyd County’s 32nd Judicial Circuit recently became the second circuit in Kentucky to use mediation to settle felony cases, with judges successfully resolving eight of 11 cases. The mediation was coordinated through an Administrative Office of the Courts program designed to reduce court caseloads.
Chief Senior Judge William J. Wehr and Senior Judges Charles W. Boteler Jr., Stephen A. Hayden and Steve K. Mershon, who are trained mediators, worked to resolve the cases Thursday, March 13, in conjunction with Circuit Judge Marc I. Rosen, who serves Boyd County. Senior judges are retired judges who continue working for a set amount of time in return for an enhanced retirement benefit but no other pay. They assist sitting judges with congested dockets and fill in when a sitting judge dies or retires, among other duties.
Defendants in the Boyd County felony cases were accused of offenses including assault, receiving stolen property, drug trafficking, criminal abuse, possession of materials portraying a sex performance by a minor, and drug possession. The defendant and prosecution in each case volunteered to participate in mediation.
The senior judges, mediating separately, worked with prosecutors, defense attorneys, defendants, law enforcement and, in some cases, the crime victim, to settle the cases. Judge Wehr, who assisted with the judges’ mediation training and coordinated the mediation day in Boyd County, mediated various cases with the judges.
In the eight settled cases, the defendants pleaded guilty and agreed to meet terms in exchange for lesser sentences than they may have received if convicted at trial. Terms included probation in addition to paying restitution, taking an anger-management course and, in the case of the man charged with possession of matter portraying a sex performance by a minor, registering as a sex offender and completing a two-year sex offender course.
In the case of a defendant charged with two counts of trafficking in a controlled substance, the two sides agreed that he would serve five years concurrently for each count or get probation if he were accepted into a Drug Court program. He could have received up to a 20-year prison sentence if convicted at trial.
A convicted felon signed off in his case mediation to serve two six-year sentences concurrently for trafficking in a controlled substance and avoided a persistent-felony-offender charge. He could have gotten up to 20 years in prison if convicted at trial.
In another case, a defendant charged with two counts of second-degree criminal possession of a forged instrument, a Class D felony, agreed to serve two five-year sentences concurrently and pay restitution. He could have received a sentence of up to 10 years in prison if convicted at trial. He will also serve two years for a previous felony charge after having his prior diversion agreement revoked due to the new charges.
Following mediation, the parties went before Judge Rosen, who took guilty pleas in the cases based on the agreements reached in mediation. The judge, who has the authority to accept or refuse resolutions agreed upon in mediation, accepted the settlements contingent on the outcome of routine pre-sentencing investigations. He may void the agreements based on the investigation results.
Of the three unsettled cases, discussions are ongoing in two of them. A case involving a defendant charged with escaping from a halfway house and being a persistent felony offender was not settled and will be set for trial.
The AOC’s Division of Mediation contacted Judge Rosen about using mediation to resolve some of the felony cases in his circuit. Following the mediations, the judge said he was pleased with how the process worked in the felony cases and would like to use it again in his circuit.
“I think it was an excellent opportunity for defense attorneys and prosecutors to sit down with victims and law enforcement and put together a full picture of the case before agreeing on a reasonable punishment,” Judge Rosen said.
Judge Rosen said he agreed to have the senior judges try mediation in some of his felony cases because he thought it was a chance for all parties involved in a case – attorneys, law enforcement and crime victims – to witness the process of settling a criminal case.
“Plea bargaining has a negative connotation,” he said. “This gave them insight that more goes into bargaining than just picking a number out of the air.”
The cases the judges settled in Boyd County would have each taken six to 12 weeks to resolve, during which time the local jail would have been paying for food and lodging for those defendants incarcerated while awaiting trial, Judge Rosen said.
Mediation is an informal process in which a neutral third party facilitates dispute resolution between two or more parties, and it is commonly used to resolve civil cases. The AOC also has the Court Annexed Mediation Program, or CAMP, in nine counties for mediating misdemeanors and some family law cases. However, prior to Boyd County, only one other Kentucky circuit judge previously used mediation to address felony cases – Chief Circuit Judge Anthony W. Frohlich, who serves Boone and Gallatin counties.
The mediation process is designed to help disputing parties reach an agreement on all or part of the issues in dispute. Decision-making authority remains with the parties, not the mediator. The mediator assists the parties in identifying issues, fostering joint problem solving and exploring settlement alternatives.
With the exception of Judge Wehr, the judges who conducted mediations in Boyd County mediated cases Friday, March 14, for Circuit Judge Oscar Gayle House, making him the third Kentucky judge to use mediation to resolve felony cases. Judge House serves Clay, Jackson and Leslie counties.
The mediations in Clay County resulted in parties reaching settlements in 18 of the 19 cases the judges addressed.
The judges said those involved in the mediations in Boyd and Clay counties deemed the process worthwhile.
Judge Hayden said mediation saves money by resolving cases that could otherwise go on for days in court. The method works, in many cases, because it gives people a chance to have their say, he said.
“Sometimes it’s just giving people the opportunity to voice their concerns,” Judge Hayden said. “A lot of times, people feel like they are not being heard. But in mediation, they feel like, ‘Hey, I’m being listened to.’ ”
Judge Mershon agreed, adding that both sides in a felony case may prefer mediation with a senior judge to a trial because they feel a knowledgeable, retired judge with ostensible authority is weighing in on their case.
Carol Paisley, manager of the AOC’s Division of Mediation, said the division plans to continue working with judges to get felony cases handled through mediation rather than at trial when possible.
“We have a process that works and we have mediators available,” said Paisley, who worked with Judge Wehr to coordinate the mediations in Boyd and Clay counties. “Now it’s just a matter of identifying the next areas to use this program, which likely will be jurisdictions with heavy caseloads and an overcrowded jail nearby. Overcrowded jails pass on significant costs to the counties and this is one tool to help reduce those costs.”
The AOC in Frankfort is the operational arm of the Kentucky Court of Justice and supports the activities of 4,000 court system employees, including the elected offices of justices, judges and circuit court clerks. As the fiscal agent for the state court system, the AOC executes the Judicial Branch budget.