Commentary : Keeping Courtroom Doors Open

What if you retained a lawyer to represent you in some sort of legal action and paid his fee, and then your lawyer refused to let you know what he was doing on your case, and told you his methods were “private” and couldn’t be revealed to you, the client? How would you feel? Would you be satisfied with a justice system which operated on an assumption that you had no right to know what was happening to your case?

With some regularity since last October, the news media have kept you informed of a public debate within the legal community. If you’ve been following this debate, you know that it centers generally on the issue of whether proceedings in felony cases should be held on the record, in open court--or should routinely be conducted off the record, in the judge’s chambers. News coverage has included a variety of viewpoints from prosecuting and defense attorneys, judges and other court officials.

This debate certainly has concerned a matter of public interest; members of the public whose taxes support the judicial system and pay the salaries of public officers (and who may sometimes become litigants themselves) have an unquestionable right to be kept informed of the operations of their courts. No one, presumably, would oppose the right of public access to this debate. Indeed, would anyone, of whatever viewpoint, choose to confine this debate to closed meetings of lawyers and judges, and shut out the public? Apparently not, judging from the frequency with which the various participants have spoken out publicly and freely.

Such a public exchange is, as always, a remarkable incident of our First Amendment heritage. The public has had access to matters which are the public’s business, and has thus had the chance to make informed evaluations and judgments. Who among us would have it any other way?

Felony crimes (such as murder, rape, robbery, burglary and narcotics sales) are offenses not only against individual victims but also against the peace and security of the general public. When the district attorney’s office undertakes a prosecution of a criminal case, we do so as the legal representative of the people of the State of California. Our client is the public. In my view, that makes the disposition of criminal cases the public’s business.

Last October, I reaffirmed our office policy that any discussion of felony cases between a judge, the defendant’s attorney and the deputy district attorney is to be conducted on the record, in open court, where the public’s business ought to be conducted. (This was not, as has erroneously been reported, an authorization for open-court “plea bargaining.” Plea bargains in serious felony cases are not permitted under the law nor under our policy.)

Although many defense attorneys have had no difficulty in representing their clients’ interests in open court, others declared their opposition from the outset, insisting they could not discuss in public what they could discuss in a judge’s private chambers.

The reaction of this latter group was to schedule trials in cases that might otherwise have been concluded by a guilty plea to the court. This stance by some defense lawyers caused court officials to reserve more courtrooms for criminal trials and fewer courtrooms for civil cases. Court administrators indicated that an existing backlog of civil cases could lengthen. (A handful of vocal defense attorneys alarmingly predicted a massive “crunch” of criminal trials and wholesale dismissals of serious cases; neither of these specters ever materialized.)

Throughout the debate carried by those defense lawyers still opposed to open-court proceedings, there has been a persistent claim of the ethical impropriety of discussing their clients’ cases in a public forum. This claim is unsupportable, of course, because the result of a failure to resolve a case by guilty plea is a public trial and sentencing, during which the fullest possible public disclosure must inevitably be made.

Just as the public has a right of access to this debate, it has a right of access to the courthouse discussion of felony cases. If I were a lawyer in private practice, my client would have a right to know what I was saying and doing on his behalf; that my client in felony criminal prosecutions is the public does not abolish that right.

The public has just as much right to observe the discussion and disposition of its cases as any other litigant. Secretive conferences in chambers are simply inconsistent with such rights. It will not do to presume that the public’s business is none of the public’s business.

The solution to any court congestion caused by the initial reaction of some defense attorneys is obvious: if what they previously said in chambers to resolve cases was proper, it can properly be said in open court, on the record, and resultant dispositions can continue.

I sincerely believe that any competent attorney can get justice for his clients in our courts.

Mark Twain was only partially correct when he said, “We ought never to do wrong when people are looking.”

The moral truth, of course, is that we ought never to do wrong, period. Given our human fallibility, the best we may be able to do is to insure that people are always looking--or always might be.