Plea Bargain Issue: The Jury’s Still Out : County D.A.’s Crackdown on Practice Reassessed as Controversy Rages On

Normally, a man like Danny Ramirez might have been looking at a year or less in county jail. At least that’s what his lawyer thought.

Awakened one night last year by a noise at his Santa Ana home, Ramirez ran outside to confront a prowler. When the man moved toward him, Ramirez pulled out a gun and fired. It was meant to be a warning shot, his lawyer said, but it was off the mark. The prowler died instantly.

Ramirez was charged with second-degree murder. His attorney tried to work out a deal in a private bargaining session with prosecutors: in return for a guilty plea to a lesser crime--perhaps involuntary manslaughter--his client would waive the right to what might be a long and expensive trial at taxpayers’ expense. The case “cried out for a negotiated settlement,” said the attorney, who agreed to discuss the case only on the condition that his client’s real name not be used.

Such plea bargaining used to be common in the crowded Orange County criminal courts. But last October Dist. Atty. Cecil Hicks announced a crackdown on the practice, saying the court’s business should not be conducted behind closed doors. He ordered his prosecutors not to negotiate pleas except in open court, even though defense attorneys complained it would be difficult--and probably unethical--for them to discuss the strengths and weaknesses of their clients’ cases in public.

For Ramirez, that policy meant there would be no deal with Orange County prosecutors. He could either plead guilty and face 15 years to life in state prison or go to trial and try to prove his innocence. The choice was obvious--and his gamble paid off when he was acquitted earlier this year.

That outcome raises several questions. Should Ramirez have been offered a special deal by prosecutors? Would justice have been better served by a jail sentence in exchange for a guilty plea than by the jury’s finding of innocence? Just how great is society’s interest in saving money on trials? Should everyone accused of a crime get a trial, whatever the cost?

Such questions have punctuated the acrimonious national debate about plea bargaining. While the practice is “deeply, deeply ingrained” in the nation’s criminal justice system, according to William F. McDonald, a Georgetown University sociologist, it has no shortage of critics.

Much of the opposition, McDonald said, grows from anxiety about rising crime and a belief that the only solution is to hand out increasingly tough sentences to criminals.

“There’s a pervasive belief that plea bargaining is compromising with evil, like cutting a deal with the devil,” he said. “People are uncomfortable with the whole idea.”

Indeed, Orange County’s policy is only the most recent in a series of efforts across the nation to stamp out plea bargaining. From Alaska to New Hampshire, from Michigan to Texas, the custom of swapping guilty pleas for reduced sentences has sparked criticism in courtrooms, legislative hearings, political campaigns and the pages of scholarly journals.

Crusades to end the practice have produced decidedly mixed results.

In Orange County, the number of plea bargains in felony cases has dropped dramatically since Hicks’ policy was announced. As a result, more cases are going to trial, and presiding Superior Court Judge Harmon G. Scoville has estimated that the additional trials and related court expenses are costing taxpayers $500,000 a month.

Attempts elsewhere to end plea bargaining have met with little success.

Nationally, fewer than 6% of all felony defendants ever make it to trial, according to U.S. Department of Justice statistics. More than 90% of the nation’s criminal cases that are not dismissed end in guilty pleas, often the result of plea bargaining.

The arguments in favor of plea negotiations are familiar. Whether they practice in congested, big-city courtrooms or rural communities, judges, attorneys and prosecutors say the U.S. criminal justice system is burdened with thousands of backlogged cases and could not possibly provide a jury trial for every defendant.

“It’s in the public’s interest to settle many of these cases before they get to trial,” said Joe Charney, a deputy district attorney in Los Angeles County, where plea bargaining is common. “Barring major changes in the legal system, it’s absolutely necessary.”

But the public remains hostile to plea bargaining, an attitude that seems to harden as time goes by, said McDonald, who in 1985 conducted an in-depth survey of plea-bargaining procedures for the National Institute of Justice in Washington.

Although the majority of plea bargains are hammered out with little fanfare, some generate massive publicity. Spiro T. Agnew, for example, resigned the vice presidency and avoided a jail term for tax evasion under a 1974 plea-bargain agreement. More recently, financier Ivan Boesky agreed to provide federal investigators with information about insider trading on Wall Street and pleaded guilty to negotiated charges in return for “consideration” at sentencing.

Proponents believe such arrangements are necessary because justice is rarely black and white. The legal system needs to examine the shades of gray in each case, prosecutors and attorneys say, and plea bargaining gives them the discretion to do so.

Some say Danny Ramirez’s trial is a case in point.

An autopsy revealed that the prowler he shot was intoxicated and had cocaine in his system. The victim had a history of violent, aggressive behavior when drunk. Witnesses said he was advancing threateningly toward Ramirez when the fatal shot was fired. The defendant, an undocumented worker, had not caused trouble with neighbors and had no felonies on his record.

“The case could and should have been negotiated,” the defense attorney said.

Prosecutor Counters

But Jan C. Sturla, the deputy district attorney who prosecuted the case, disagreed.

“It was the kind of case a jury should have decided,” he said. “I wasn’t going to offer him (the defense attorney) some necklaces and beads to get him to plead, just to avoid an adverse jury verdict. This was a tough case . . . and it’s important to let the jury decide these cases because they, ultimately, are the conscience of the community.”

Many prosecutors agree with Sturla, saying they would be delighted to bring more cases before juries. But they doubt that the public is willing to pay for the added jails, courtrooms, prosecutors, court-appointed attorneys, judges, bailiffs and clerks that would be needed.

“When someone says ‘let’s stamp out plea bargaining,’ the key question is: ‘Do you really want to pay for it?’ ” McDonald said. “There’s a financial price for doing this, and I don’t know if the public really understands what’s involved.”

In Los Angeles, there were 7,597 criminal defendants awaiting trial as of December, an increase of more than 1,000 over the previous year’s total, according to court records. If the county suspended plea bargaining and tried to bring even more cases to trial, “it would be gridlock tomorrow,” said Curt Livesay, a Los Angeles County deputy district attorney.

Nationwide Dilemma

These warnings, however, have not discouraged other communities from attempting to restrict or ban plea bargaining.

In Alaska, the state attorney general announced the nation’s first statewide crackdown on plea bargaining in 1975. That sparked a rise in the number of trials and a slight increase in the severity of sentences, particularly for lesser felonies.

Alaska’s program has been viewed as a success, but critics say the state’s relatively small number of felony cases--fewer than the number filed annually in some California counties--means that the system could not be transferred to the crowded courts of metropolitan areas.

El Paso, Texas, attempted to root out plea bargaining, but the experiment foundered when the courts were flooded with additional trials and could not cope with the added load. In New Orleans, plea bargaining in cases involving major felonies was banned several years ago, but only after the number of cases being filed was cut drastically.

One of the more sweeping efforts to limit plea bargaining occurred in California, when voters in 1982 overwhelmingly approved Proposition 8, the so-called Victim’s Bill of Rights. One section of the measure prohibited plea bargaining in Superior Court cases involving serious felonies and was touted as a way to ensure tougher sentences for criminals.

Effect of Loopholes

However, the law contained loopholes that allowed plea bargaining to flourish, according to a 1986 report by the California attorney general.

One exception permits felonies to be plea bargained in Municipal Court before they are sent to Superior Court for trial. Others allow prosecutors to plea bargain serious felonies if there is insufficient evidence to prove the case, if the testimony of a key witness cannot be obtained or if a plea to reduced charges would not be substantially different from the outcome of a jury trial.

The last three exceptions are circumstances into “which most cases might fit, due to the nature of our securing witnesses and the proof that we have,” said Livesay. In Los Angeles “Everyone in the system has their own reasons for liking plea bargaining,” said Judge Adam Fine, a Milwaukee jurist who banned plea bargaining in his own court and has written on the subject. “For judges, plea bargaining means moving cases along efficiently. For prosecutors, it’s also something that makes their work easier.

“It’s also important for attorneys. Most criminals don’t have the type of money that would support attorneys putting on a full-court press for trials. These attorneys need a high volume of cases, a lot of plea bargains, just to make a living.”

Defenders of plea bargaining dismiss these arguments, saying the practice is grounded in the stark, day-to-day realities of the American legal system.

Hard to Prove

The claim that large numbers of innocent defendants are coerced into pleading guilty is difficult if not impossible to prove, Los Angeles County prosecutor Charney said. And the fact that some defendants get harsher sentences after trial than those who accept plea bargains is inevitable, given the nature of jury trials, he added.

Criminal cases often are reduced to terse details during plea-bargaining sessions, Charney explained, and the traumatic particulars of a violent crime can be boiled down into legal shorthand. But in trials, “all the facts come out . . . warm bodies take the stand. Victims get to the judge in terms of the ‘blood and guts’ of the trial. Judges are human beings, and they’re going to get much more involved in this.”

There is an inherent “futility” in trying to root out plea bargaining, Charney said. But that hasn’t stopped Orange County Dist. Atty. Cecil Hicks from trying.

Long before California voters approved Proposition 8, Hicks had expressed strong opposition to plea bargaining and instructed his deputies not to negotiate with judges and defense attorneys. The policy was undermined, he said, when judges assumed the role of conducting the negotiations from prosecutors, and cases were settled much as before.

Last October, Hicks tried a different approach. Henceforth, he declared, his deputies would not participate in plea-bargain discussions in judges’ chambers. All such discussions would have to take place in open court and on the record, Hicks said, because “the public’s business should be conducted in public.”

The new guidelines were justified, he said, because several judges had been violating Proposition 8 guidelines in plea-bargaining sessions behind closed doors. As a result, Hicks said, the handling of Orange County felony cases had begun to approximate a “Tijuana bargain basement.”

“I can’t control what the judge does,” Hicks said. “He’s got his job; I have mine. But we’re going to do it in open court, where all of the world sees what goes on.” Nearly a year later, the full impact of Hicks’ policy remains difficult to gauge. But it is clear that the mechanics, if not the substance, of criminal justice in Orange County have changed.

In the county’s busiest courtroom, where felony cases on the master calendar are assigned to other courtrooms for trial, the “open” bargaining that Hicks called for takes place away from the judge’s bench, within public view but largely out of earshot. Superior Court Judge Myron S. Brown, without his robes, sits in a corner or at a desk and talks informally with prosecutors and defense attorneys about their cases. In other courts, the proceedings are amplified so spectators can hear.

As many attorneys predicted, the number of certified pleas resulting from plea bargains has fallen. For example, there were 1,229 guilty pleas from January through June, 1986, but only 505 in the same period this year.

Also, the number of juries hearing criminal cases has increased. There were 113 criminal cases heard by juries from January through June, 1986. That number jumped to 174 in the same period this year.

As some had feared, the plea bargaining had an apparent effect on the backlog of civil cases awaiting trial. The backlogged cases totaled 5,951 in June, 1986, and had grown to 7,019 by the end of last year. This year it appears to have stabilized, with a backlog of 7,008 as of the end of June.

The biggest surprise was in the growing number of felony defendants whose cases were dismissed before reaching trial. From January through June, 1986, there were 29 such dismissals. But for the same time period this year, there were 112.

Hicks, who claims that the costs of his policy have been greatly exaggerated, said the increases in the number of trials and the number of dismissals don’t bother him.

The bottom line, he said, is that the public doesn’t approve of plea bargaining.

“Somebody said to me . . . ‘you’re wearing a white hat on this issue,’ and of course I am wearing a white hat. People ought to be able to walk into a courtroom and know what the hell is going on.”

Times staff writer Jerry Hicks contributed to this article.