“402 Conferences” in Boone County

 

Georgette Braun: A step that avoids jury trials at issue in Boone County state's attorney race

By Georgette Braun
Staff writer

Posted Mar. 6, 2016 at 9:01 AM
Updated Mar 6, 2016 at 3:28 PM

A courtroom tool widely used in Winnebago County and elsewhere in Illinois that can avoid lengthy and costly jury trials isn't used in Boone County.

But it would be if Tricia Smith wins her bid against incumbent Michelle Courier on the Republican ballot in the March 15 primary election for Boone County state's attorney. There is no Democratic candidate on the primary ballot.

At issue: so-called "402 conferences," which refer to the long-standing Illinois Supreme Court Rule 402. The rule is usually invoked in a felony case. It allows a judge, prosecutor and defense attorney to meet behind closed doors without the presence of the defendant. The aim is for the judge to suggest an appropriate sentence should the defendant plead guilty.

Courier told me she has a policy not to participate in 402 conferences. It's required that all three parties be involved in such talks. "We believe it benefits the defense more than the state," she said. "I don't know why prosecutors use that, and I don't know how it benefits victims."

Tricia Smith told me that if she's elected state's attorney, she'd participate in the meetings. "I don't think it's not being tough on crime, ... and you get the end result without having to put (victims) through trial," she said. Smith said 402 conferences can be a "good tool to use to help move cases through the system, because part of the problem in Boone County is long wait times" for trials.

Smith said it takes an average of 788 days for jury trial felony cases to move through Boone County court, compared with 563 days to close such cases in Ogle County. Smith said jury trials are expensive considering witness expenses, juror fees and time spent on each trial by the judge, court officials and the state's attorney's office.

Courier said Boone County isn't comparable to Ogle County. "We have twice as many felony cases," she said. And while 402 conferences may "reduce the number of cases, it does not serve justice," Courier said. In addition, she said, "our closure rates are higher now than they have ever been."

Winnebago County State's Attorney Joe Bruscato said 402 conferences "offer us an excellent opportunity to bring about resolution of a case," noting that "both parties are free to reject" the judge's sentencing recommendation. The meetings typically take less than an hour, he said. His office doesn't keep track of how many times it participates in the meetings.

Courier said the smaller size of Boone County's court system could pose a problem for the conferences. Boone County has a single felony judge who could be "conflicted out of a case," if that judge learns too much evidence through a 402 conference prior to a case, Courier said. "In Winnebago, that is less of an issue because of a number of judges."

A Freeport-based judge says 402 conferences are useful and not one-sided. "I would not say it benefits anyone more than anybody else," said Judge James M. Hauser, associate circuit judge of the 15th Judicial Circuit in Stephenson County. "It benefits the whole system." Hauser said in courtrooms where he presides that use of 402 conferences is "more than occasional."

Here's what typically goes on in the judge's chamber behind closed doors. The prosecution presents facts of the case from police reports and conversations with witnesses. Additionally, the prosecution points out factors of the case that may have bearing on the sentencing, including whether the defendant had been in jail before, lacked remorse, or how much harm had been done to the victim. The defense would then explain the person's involvement in the alleged offense and factors that could make the sentence less serious.

A 402 conference is sometimes held, Hauser said, when a person with a criminal record cooperates with police to provide information on another criminal. "Police have to use bad guys to catch bad guys," he said. The prosecutor and defense attorney go to the judge, who has to determine or approve sentencing, to explain: "This is why we are giving him a sweetheart deal, because he worked with SLANT," Hauser said. He was referring to the State Line Area Narcotics Team. "They don't want to put that out there in open court," he said. But they want the judge to know that the defendant "lived up to his end" of the bargain.

Another situation in which 402 conferences are used: when the victim in a domestic battery case may not want to testify in court, so the prosecutor, defense attorney and judge agree to sentencing that includes getting the accused into counseling. "Should the defendant reject the recommendations of the 402 conference, the case can still precede to trial," Hauser said.

Another judge, though, says 402 conferences should not be used. Robert J. Steigmann is an appellate court justice with the Fourth District. In a court case filed March 4, he said, "As is almost always the case, defense counsel sought to get the trial court involved — ostensibly so that the court could be a 'preliminary feel' about a possible sentence.

"But defense counsel's transparent motive was to convince the court that it should tell the prosecutor he should go along with defendant's request for probation and not insist on at least a three-year prison sentence. When the court indicated that it thought the State's offer of three years was 'a very good offer,' the case ultimately proceeded to a jury trial. ... The easiest way, of course, is for trial courts never to be involved in plea bargaining."

In his 12 1/2 years as a trial judge, he said he never participated in 402 conferences and "was able to achieve the same number of negotiated pleas as judges who participated in such conferences."

Lou Bianchi, McHenry County state's attorney, told me 402 conferences should be used "sparingly and cautiously. We don't want to use (the judge) as a mediator," he said.

Ryan Swift, a Rockford-based defense attorney, told me he participates in 402 conferences in 5 percent to 10 percent of the cases he handles. "In my experience, more often than not, it is beneficial to do it," Swift said.

Rockford-based defense attorney Jerry Lund said he participates in 402 conferences at least once a week on behalf of his clients, mostly in Winnebago County. With regard to Boone County's policy, he said: "If a prosecutorial agency has a policy to not do 402 conferences, it really impedes ... the opportunity to seek a resolution to the case prior to trial."

Georgette Braun: 815-987-1331; gbraun@rrstar.com; @GeorgetteBraun

Above is from:  http://www.rrstar.com/news/20160306/georgette-braun-step-that-avoids-jury-trials-at-issue-in-boone-county-states-attorney-race/?Start=3