Court Logjams Grow in Wake of D.A.'s Edict on Plea Discussions

By JERRY HICKS and JOHN SPANO

Dec. 7, 1986 12 AM PT

Times Staff Writers

Santa Ana attorney Ronald D. Davis pleaded with West Orange County Municipal Judge Marvin G. Weeks one day last week to grant him a one-hour hearing in a $3,000 civil case. The hearing had been postponed twice; it was unfair to his client, he said, to be put off again.

Weeks, in charge of daily assignment of cases to courtrooms at West Court, firmly shook his head.

“You’re not going to get a courtroom today,” Weeks said. “We’re backed up with preliminary hearings because of Dist. Atty. Cecil Hicks’ new policy. As long as that policy continues, we’re going to be backed up for quite a while.”

Weeks is not the only one talking about backed-up hearings in Orange County courts these days. Hicks’ Oct. 9 policy, requiring Orange County prosecutors to conduct all settlement negotiations in felony criminal cases in open court, rather than in judges’ chambers, is being blamed for growing backlogs of both criminal and civil cases.

Wants Business in the Open

Hicks said judges and defense attorneys who are blaming him for the backlogs are pointing in the wrong direction. All he is seeking, he says, is to have the public’s business conducted in a public forum.

But defense attorneys say they cannot ethically discuss their clients’ cases in open court for purposes of settlement negotiations and therefore are being forced to take all their cases to trial.

In any case, the backlog appears to be real. And growing, to wit:

- The proportion of felony cases settled without trial plummeted from 64% in September to 41% in October. While November figures are not yet available, one judge said his usual number of 80 or 90 pretrial settlements a month has dropped to “nil.”

- The number of preliminary hearings scheduled in municipal courts countywide has more than doubled since Hicks’ order.

In California, anyone charged with a felony is entitled to a preliminary hearing in Municipal Court to determine whether prosecutors have a strong enough case to bring the person to trial in Superior Court. If a case is settled through plea bargaining in Municipal Court, the preliminary hearing is not necessary.

What this could mean for the Orange County court system is more trials and, eventually, more backlogged cases in courthouses with too few judges and too few courtrooms to handle the load.

The county public defender’s office has added six trial lawyers to its felony panel, bringing them in from other duties, to handle the increase in the number of cases headed for trial. And more than 30 judges were assigned to criminal cases in Superior Court last week, nearly double the usual number. That meant putting many civil cases on hold. Criminal cases are entitled by law to priority over civil cases when courtrooms are scarce.

‘A Bit Overloaded Now’

Said acting Superior Court Presiding Judge Richard J. Beacom: “We’re a bit overloaded right now. We could have some serious problems down the road.”

In the past, most felony cases have been settled without a trial, after one or more off-the-record conferences in the judge’s chambers between the judge, the defense lawyer and the prosecutor. In 1981, Hicks prohibited his prosecutors from plea bargaining, and that has limited their role in the discussions in judges’ chambers. But judges still depend on prosecutors’ input before indicating what sentence a defendant might get if he pleads guilty.

Chief Assistant Dist. Atty. Michael R. Capizzi said Hicks issued his new order after he and his top administrators became concerned that the private talks in judges’ chambers were becoming the rule rather than the exception.

Mark E. Edwards, president of the Orange County Trial Lawyers Assn., said Hicks’ directive “has already had a tremendous impact on the civil case backlog.” Many civil cases slated for trial in October and November have been pushed back four months.

“It is illustrative of the beginning of the tidal wave,” said Thomas R. Malcolm, chairman of the business litigation section of the Orange County Bar Assn.

Malcolm said he had a civil case of his own waiting in Superior Court Judge Philip E. Schwab’s courtroom. Schwab, who is on the court’s civil panel, had three other civil cases ahead of Malcolm’s. Yet Wednesday, Schwab had to set them all aside to handle a criminal case he was assigned.

Hicks’ policy also affects misdemeanor criminal cases.

“We usually have up to eight judges (in North Court) to handle misdemeanors,” said North Orange County Municipal Judge Margaret R. Anderson. “But now so many judges are tied up on felony cases we’re getting backlogged. And the crunch is coming.”

The “crunch” is the talk of the county’s numerous courthouses. As the question goes, when will the county reach the point at which more cases are ready for trial than there are judges and courtrooms available?

Right to Speedy Trial

A judge can simply put off a civil case for another month, or even another year. But in felony criminal cases, a defendant must be brought to trial within 60 days of arraignment in Superior Court unless he waives his right to a speedy trial.

In North Court in Fullerton, where there are three Superior Court judges, some 60 cases are scheduled for trial in the next two weeks. If the defense lawyers in all those cases say they are ready for trial, then Judge James O. Perez, who schedules cases, will have no more than 10 days to find courtrooms for them.

And then what?

“If it’s fourth down, you punt, don’t you?” Perez said. “I’m going to take it one day at a time. If the defense lawyers say they are ready, then I’ve got 10 days to play with and find them a courtroom. If I can’t do it, I can’t do it.”

Capizzi, the spokesman for the district attorney’s office while Hicks is recovering from injuries sustained in a recent auto collision, smiles when he hears the news.

“There are other judges who can take some of those cases,” he said. “If that number of defense lawyers really say they are ready, then our people will be ready, too.”

Capizzi recognizes that the courts have been getting more and more crowded since Hicks’ policy took effect. But he says it’s not the prosecutors who are causing the logjam; rather, he says, it’s the defense lawyers, who are overreacting to it.

“Those who are screaming doom are deliberately refusing to settle cases because they hope they will jam up the system,” Capizzi said.

That brought a sharp reaction from defense lawyers.

Denies Conspiracy

Paul J. Wallin, chairman of the Orange County Bar Assn.’s criminal defense panel, denied that there is any conspiracy among defense lawyers to overload the system to force Hicks to back down.

Defense lawyers, he said, have no choice but to go to trial if they can’t have the privacy of a judge’s chambers in which to settle their cases.

And, he said, their clients are not going to waive their speedy-trial rights just to accommodate a court.

“Our responsibility is to our clients,” Wallin said. “If we can force a prosecutor to dismiss a client’s case because no courtrooms are available for trial, it would be malpractice on our part not to do it. We didn’t create the policy. But as long as it exists, we’re going to take advantage of it.”

The most anger at Hicks’ policy seems to come from the public defender’s office.

Deputy Public Defender Michael P. Giannini, head of the panel of lawyers in his office who handle felonies in Superior Court, said he is offended by “the arrogance” of the district attorney’s office.

“I’m old-fashioned; I still believe the judges should run the courtroom,” Giannini said. “The arrogance of those people--to think they can dictate how the system will run!”

Capizzi points out that there was a similar uproar in 1981, when Hicks announced that he would not allow his prosecutors to plea bargain.

Long Beach Policy

“Things had a way of leveling out then, and we think things will level out again,” Capizzi said.

He said he knows of no county in the state with an order similar to Hicks’ latest directive. But he points to what he sees as success in the Long Beach branch of the Los Angeles County district attorney’s office, which initiated a similar policy in April.

John M. Provenzano, head prosecutor in Long Beach, said there was a “momentary dislocation” in the case backlog there because of the policy. But once the new rules were understood, court business got back to normal, Provenzano said.

“Once things shake down, and everybody knows reasonably what to expect, then cases proceed as they ordinarily would,” Provenzano said.

But Judge Beacom, who was presiding judge in Orange County from 1983 to 1985, said he is concerned that Long Beach eventually will see an adverse effect on its civil cases.

In Orange County, he said, judges have worked hard to reduce the backlog of civil cases so they can go to trial within two years of filing, rather than five years.

“I’m worried that this new policy is going to cost us in a few months what we worked so hard to accomplish,” Beacom said.

Defense lawyers in Orange County say Hicks’ new policy will not work here. They vow that, with few exceptions, they will not discuss settlement of their cases in open court.

Brutal Candor

Private discussions in chambers, they argue, guarantee that all parties can be candid; sometimes that means talking about the quality of the prosecution’s witnesses as well as the character of the defendant.

“No one is going to sit in open court and talk about a witness being a whore, or discuss a defendant’s criminal past,” Giannini said. “And prosecutors are going to be just as reluctant as we are to have these kinds of talks on the record.”

Richard L. Schwartzberg, a private Santa Ana attorney who recently left the public defender’s office, gave an example of why settlement discussions in open court would not work.

Schwartzberg said he had a client facing a charge of kidnaping for ransom, which carries a life sentence. But in chambers, he said, the prosecutor agreed that he might have filed charges too serious to fit the crime. After further discussions with the judge, Schwartzberg’s client ended up pleading guilty to a misdemeanor and being given a sentence that included no jail time. That saved the county the cost of a trial.

“We could never have accomplished that with an open-court discussion,” Schwartzberg said. “In open court the D.A. would not be nearly so candid.”

But Capizzi counters that Schwartzberg himself recently said at a county Bar Assn. meeting that sometimes violations of law have gone on in these private meetings.

If justice is indeed being served in closed chambers, Capizzi said, it should be brought into open court so the public can see for itself. And not just the general public, he said, but the victims of crime in particular. One argument used by defense lawyers for not doing so is because their clients are sometimes involved as police informants in other cases.

Capizzi called that “an absolutely bogus issue.” Only 1% of the cases involve police informants, he said.

Criminal Records Disclosed

Defense lawyers also say they don’t want their clients’ criminal records discussed in public. Capizzi’s reply is that “maybe they should be. Let the public know who these people are.”

Superior Court Judge Luis A. Cardenas, one of the most zealous defenders of the in-chambers system, said when Hicks announced his policy that the court system would grind to a halt if many felony cases were not settled before trial.

But Capizzi complains that judges too often define progress as merely moving cases along. Prosecutor Provenzano of Long Beach agrees.

“I believe that the judge becomes so engrossed in the bargaining process and he’s so persuaded (of the need) to move cases, that he no longer retains the perspective of an impartial judge. . . which the parties are entitled to,” Provenzano said.

But Edwards, of the Trial Lawyers’ Assn., believes judges help the system with these private talks.

“The real shame is that if a judge works hard in chambers to settle a civil case by way of a compromise, he’s a hero. But if a judge works hard in chambers to settle a criminal case by way of plea bargain, the public thinks that they have been denied justice,” Edwards said.

Can the district attorney’s office make Hicks’ new policy work within the present system? Maybe not, Capizzi said.

Cost of Justice

“Maybe we will have to end up hiring more judges to make it work,” Capizzi said. “Maybe the cost of justice will have to go up.”

But it could work within the present system, Capizzi said, if defense lawyers and judges would help make it work.

“If everybody would just give it a try, it would be a model for the state,” Capizzi said.

But it’s not likely that Hicks and his staff will find such cooperation, at least in the next few months.

“Most defense lawyers do not want to start a trial in late December, but come Jan. 5 you’re going to see the damnedest bunch of cases ready for trial you have ever seen,” Wallin said. “And the ramifications from that will be incredible.”

Giannini, however, predicts it won’t happen that way.

“There won’t be a cataclysm,” Giannini said. “It will be more like World War I trench warfare,” with both the prosecutors and the defense lawyers digging in and refusing to budge from their positions.

Judge Weeks in West Court says it will be interesting to watch.

“I wish I had my crystal ball,” Weeks said. “All I know is we’re losing ground.”