Whitesburg KY

Ky. courts try criminal mediation


Attorney Kristen Bailey felt good about trying mediation for the first time in a criminal case.

“Both sides felt like they got something out of it and got to have their say,” said Bailey, whose client, Michael Gilliam, was charged with burglarizing two family members’ homes in Clay County earlier this year.

Gilliam’s case, part of a state pilot program to reduce congestion in courts and prisons, resulted in a plea agreement where he avoided prison but agreed to restitution, drug treatment and five years probation.

Mediation – common in civil cases – is a rarity in felony criminal cases in Kentucky and across the country, in part because of prosecutor opposition and judges’ concerns about political fallout.

During a mediation session, the senior judge meets first with the defendant and his attorney, as well as the prosecutor, and possibly police and victims, before separating both sides and then trying to work out a plea agreement.

Supporters say mediation saves time and money and gives victims and defendants more input. In Kentucky’s pilot effort, the mediators are retired judges who have no affiliation with the county or case.

Circuit Judge Oscar Gayle House said many of the cases would take six to eight weeks in a traditional court setting and likely leave both sides dissatisfied.

“A lot of times … victims and defendants will leave the system without feeling they have had their say,” House said. “…We very seldom leave court with people who are happy, but we did.”

Harry Rothgerber, first assistant commonwealth’s attorney in Jefferson County, said mediation adds an unnecessary layer to the criminal process and an “inappropriate interjection” of a judge who won’t know as much about the specifics of a case as the lawyers involved.

“We do mediation every day; it’s called plea bargaining,” Rothgerber said. “If the defendant doesn’t like the offer we make, they don’t have to accept it.”

Another concern has been the confidentiality of the mediation meetings.

“If a defendant says something incriminating during mediation and it falls through, I expect to be able to use it at trial,” Rothgerber said.

Boone County Chief Circuit Judge Anthony Frohlich, whose court was the first in Kentucky to use mediation in 2005, said what’s discussed stays private.

“Nobody would agree to this if (what they say) could be used against them,” Frohlich said.

Despite objections from prosecutors, judges see the program as useful and the early returns as good.

“It gives people a chance to resolve their cases in an informal setting,” said senior status Judge Steve Mershon, who has participated in several mediations. “If you let people just vent, get things off their chests and explain the possible options to them, there is a good possibility” of settling the case.

Court officials say felony mediation benefits all parties, as defendants can make a confidential apology to victims’ families and hear from a seasoned judge about their chances at trial. It also gives prosecutors the opportunity to achieve justice in a case without burdening the victims and their families with a lengthy trial.

For mediation, all the parties are required to come together, making it easier to work out a deal.

“We get all the players together, which is extremely unusual,” said Senior Status Judge Steve Hayden.

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