Lead Attorney Is Replaced : Lawyer Swap Could Bring Orange County Jail Peace

An American Civil Liberties Union decision to change lead attorneys in its jail-overcrowding lawsuit has prompted Orange County Counsel Adrian Kuyper to tell the Board of Supervisors that it has a “unique opportunity” to settle the 13-year-old case.

On Nov. 25, the ACLU wrote to U.S. District Judge William Gray, saying it was replacing Richard P. Herman as its lead counsel in the lawsuit. In the letter, Southern California ACLU legal director Paul Hoffman said earlier correspondence from Herman to Gray “does not represent the ACLU’s views.”

County officials have long complained that Herman has been overzealous in his charges about jail conditions and an impediment to a resolution of the lawsuit.

In a memo to the supervisors and 10 other county officials earlier this week, Kuyper said: “Herman has continued to file repetitious litigation, which we believe is unwarranted and designed more to insure the payment of attorney’s fees than protect his clients’ rights.”

Now, with Herman apparently no longer the lead attorney on the case, Kuyper concluded in his letter that recent ACLU actions “are significant indications that the county . . . may be able to resolve this litigation in the foreseeable future.”

Roger R. Stanton, chairman of the Board of Supervisors, said Friday: “Certainly, there was a great deal of what some people perceived to be . . . showmanship, and we feel a more productive course can now be taken. But that remains to be seen.”

Herman declined to discuss problems in his relationship with the county or with the ACLU. He said, however, that “rumors of my demise have been greatly exaggerated.”

Hoffman also declined to discuss the ACLU’s differences with Herman, saying they are “internal discussions about the handling of a case. It is not a disagreement about any significant issue in the case.”

Hoffman described Herman and and ACLU attorney John Hagar as “co-counsel” on the suit. But in the Nov. 25 letter to Judge Gray, Hoffman wrote: “I have also asked Mr. Hagar to assume the position of lead counsel in this case from this point forward.”

In another development that added to the county’s optimism about the possibility of resolving the lawsuit, Gray told Supervisor Gaddi H. Vasquez this week that he is impressed with the county’s recent steps to alleviate jail problems and will relieve Lawrence G. Grossman of his duties as a special master monitoring the county’s compliance with Gray’s orders. Grossman has held that position since 1985.

“The credit goes to the county and the sheriff,” Grossman said Friday. “When I started, I said if I did a good job, I would work myself out of a job.”

Grossman observed: “My gut feeling is that today they are closer (to ending the case). I think Judge Gray is really very pleased with the progress they are making.”

Stanton added: “The attitude of the judge, as we can perceive it, is one that we can see the whole case may be dwindling down because the Board of Supervisors has done everything it possibly can to alleviate overcrowding.”

Vasquez said he couldn’t speculate about the chances of resolving the case. But he said Judge Gray “felt that the actions taken by the board . . . were in the right direction (and) would present an opportunity for resolving this lawsuit ultimately.”

Hagar said Friday, however, that he thinks the case “will definitely” continue, adding: “Despite the absolute best efforts of the sheriff, there aren’t enough jail beds.”

Herman has been the main architect of Stewart vs. Gates, filed in September, 1975, against Sheriff Brad Gates on behalf of an Orange County inmate. He has won major improvements in prisoners’ sleeping and eating conditions and in regulations governing their contact with attorneys and family members.

The lawsuit has also been a driving force behind the county’s decisions to build a 6,000-bed maximum-security jail near Anaheim, expand two of its branch jails and build a new $69-million intake and release center in Santa Ana.

The suit has also resulted in specific restrictions on the numbers of prisoners allowed at the main men’s jail in Santa Ana. Two years ago, as a part of the same lawsuit, Judge Gray also held Gates and the Board of Supervisors in contempt of court for not complying with his earlier orders to reduce overcrowding.

The county is also considering making another offer to further the efforts to resolve the dispute with the ACLU.

Kuyper suggested in his memo this week that the board ask a representative of the ACLU to participate in a broad overview of the county’s jail situation that is being prepared by Grossman.

Last month, the supervisors awarded Grossman a $25,000 contract to conduct a study of jail conditions after he proposed that such a study “hopefully can result in the county filing for dismissal of this lawsuit.”

In his memo, Kuyper said the invitation for the ACLU to join the study should “specifically exclude Mr. Herman and his staff” because Herman is not an ACLU staff attorney but is merely affiliated with the organization.

Earlier, in a memo dated Dec. 1, Kuyper wrote to the supervisors and four county administrators: “I believe that, as a result of the change of lead counsel in this case and the conclusion of the study now undertaken by Mr. Grossman’s group, we may be in a good position to terminate or severely limit the scope of this litigation.”

If Herman stayed on the case, Kuyper said, “I foresee that the litigation would continue for at least another two years.”

Herman’s differences with the ACLU became apparent after allegations of brutality in the jail were filed in Gray’s court in September. After that complaint was filed and for reasons that are not entirely clear, Gray ordered in court that all of Herman’s future court filings be co-signed by ACLU staff attorney Hagar, according to a memo from Kuyper to county officials.

In November, however, Herman filed a complaint without another signature and told the judge that Hagar is “so overworked that (his signature) was not possible.” A week later, Hoffman wrote his Nov. 25 letter to Gray, saying the ACLU did not agree with Herman’s views and that Hagar would become the lead counsel on the case.

Herman’s complaint was subsequently withdrawn, and another complaint is being prepared for filing in February, according to Hagar.

Both Herman and Hoffman declined to discuss their differences about the complaint that was withdrawn.