Use of Private Lawyers at Issue : Judge Loses a Round to Public Defender

A state appellate court Tuesday blocked a Superior Court judge’s order assigning cases to a private law firm instead of the public defender’s office in a dispute over plea bargaining.

Superior Court Judge Myron S. Brown, who runs the courtroom where all new felony cases are assigned for trial, last week announced he would no longer assign cases to the public defender’s office. The judge claimed that the public defenders were not making a serious effort at his settlement conferences to resolve cases before trial.

The dispute stems in part from Dist. Atty. Cecil Hicks’ policy issued 18 months ago prohibiting his deputies from discussing cases privately in a judge’s chambers before trial. The result has been that many defense lawyers, including public defenders, have preferred either to go to trial or enter a plea at later stages in the court proceedings.

Public Defender Ronald Y. Butler on Tuesday asked the 4th District Court of Appeal in Santa Ana to block Brown’s order. Justice Sheila P. Sonenshine did, asking attorneys for both sides to issue written statements on the issue by Monday.

“We felt--and still feel--that we are acting in our clients’ best interests,” Butler said Monday. “It’s hard not to be angry at the judge for putting us in this position.”

But Brown contends that the public defender’s office has balked at settling cases at arraignments ever since Butler sent a memo to his staff in mid-April clarifying his position on settlements.

On Friday, Brown began assigning defendants who could not afford lawyers to Stewart & Barnett, the Santa Ana law firm that has the primary contract with Superior Court. Ordinarily, those cases would go to Stewart & Barnett only if the public defender’s office declared it had a conflict.

Almost all of Brown’s cases are brought to him by the municipal courts, and attorneys are already assigned. Brown on Friday reassigned to Stewart & Barnett four indigents that had already been assigned to the public defender’s office in Municipal Court.

In Central Municipal Court, Judge Gary P. Ryan followed Brown’s lead and has refused to assign new cases to the public defender’s office.

The appellate court action affects only Brown, not Ryan.

“We thought that once the court saw what the 4th District did in the Judge Brown case, that Judge Ryan would conform,” said Deputy Public Defender Thomas J. Havlena, who filed the appeal.

Judges prefer to settle most cases to keep the county’s courts from being jammed with trials.

When Brown took over the calendar courtroom a year ago, he found a novel way to continue settlement conferences. He sits in a chair in the middle of the courtroom with the attorneys in the case and the court reporter. Brown makes the sessions available to the public if anyone requests it. But for the vast majority of cases, the group discussion is out of earshot of almost everyone else in the huge courtroom.

Attorneys call them “sweater conferences” because Brown takes off his black judicial robes and is usually in a sweater.

Because prosecutor Hicks frowns on plea-bargaining, most of the discussions take place between the defense attorneys and the judge. The problem in recent weeks has been that, in Brown’s view, in too many cases the public defender’s office has refused to agree to the terms he offered in exchange for a client’s guilty plea.

Butler, in a letter to Presiding Judge Phillip E. Cox, explained that Brown tells the attorneys that if they don’t accept his offer the terms will be “higher” when the case continues in court.