D.A. Sets Limits on Plea Bargaining : New Policy Will Create Court Backlogs, Critics Contend

Orange County Dist. Atty. Cecil Hicks has ordered the prosecutors in his office to stop participating in felony-case plea-bargain discussions in judges’ chambers, and some lawyers and judges say that could lead to court backlogs.

Critics of the new policy, issued last week, say it will cause more cases to go to trial rather than being settled with plea bargaining. That could mean courtrooms needed for civil cases would be tied up with criminal trials, which by law take priority over civil trials.

“I think it’s going to be unrealistic,” said Santa Ana attorney John D. Barnett, whose law firm of Stewart & Barnett has a contract to accept cases in which defense attorneys are appointed by Superior Court and Central Municipal Court judges. “In 60 days the courts will be so full of preliminary hearings and trials there won’t be room for anything else.”

‘Wait and See’

Superior Court Judge Francisco P. Briseno, who handles the master criminal calendar in Santa Ana where many pleas are entered, said he’s going to “wait and see” before passing judgment on the policy. But Briseno said he is concerned that the policy could adversely affect an already crowded criminal-court system.

Chief Assistant Dist. Atty. Michael R. Capizzi, however, believes that it’s all “much ado about nothing.”

“We hear the same voices of doom every time any kind of change comes along,” Capizzi said. “I think you’re going to find that business will go on as usual. Only now it will go on in public, where it belongs.”

In many cases, felony defendants end up pleading guilty after their lawyers meet in chambers with the judges and prosecutors.

For example, a judge might tell a defense lawyer that he believes a particular daytime burglary case warrants a sentence of no more than six months in the Orange County Jail. The defendant then pleads guilty to avoid conviction at a jury trial and the possibility of being sent to state prison.

Plea Bargains Continue

In 1982, Hicks issued a policy statement prohibiting his staff from participating in plea bargaining. Nevertheless, plea bargaining continued--but with little input from the prosecutors.

Recently, however, prosecutors reportedly had begun to get involved more extensively in out-of-court bargaining sessions.

“We saw it increasing more and more, which is why we issued a new policy,” Capizzi said.

Capizzi said his office’s position is that plea discussions between the judge and the attorneys in a case can continue--but in open court rather than in the judge’s chambers.

Barnett, however, is convinced that won’t happen.

“If I’ve got a client on a burglary who has given information to help the prosecution on another case, I want some consideration for it. But if I bring that up in open court, it’s like signing my client’s death warrant when he goes to jail,” Barnett said. Jail and prison officials often have to put inmates who are known police informants in protective custody to protect them from other inmates.

“There are so many differing degrees of that,” Barnett said. “Maybe my client is a homosexual and doesn’t want it known; there are just many things about a case you can talk about only in chambers.”

Conferences Down

Briseno said it’s too early to see an impact, but he said he has had only eight conferences in court this week, compared to 20 or 30 such conferences in a normal week.

“The intent behind the new policy is good,” Briseno said. “But I’m concerned whether both sides will be as candid in open court as they are in private.”

Briseno defends the in-chambers plea discussions.

“A lot of times you can tell that a case is going to be good for only six months in jail, and you know that if a defendant goes through a preliminary hearing, pretrial motions and a trial, it’s still going to end up just a six-month case,” Briseno said. “It helps the system by resolving many of these cases ahead of time.”

Orange County’s courts are busy just keeping up with the current load, Briseno said. In 1984, there were about 2,800 felonies brought to Orange County Superior Court, and that number went to 3,600 in 1985. Briseno said the 1986 figures available so far show the pace is slightly higher.

Capizzi pointed out that when Hicks issued his 1982 policy, there was a lot of speculation that it could wreck the judicial system in the county.

“We don’t see it as unrealistic,” Capizzi said. “The cases which can’t be discussed in open court are not that frequent. Things seem to be going OK so far. And the public’s business is now going on in public.”