Appeal Court Asked to Make Plea-Bargain Talks Private

Seeking to end a public plea-bargaining policy ordered 18 months ago by Orange County Dist. Atty. Cecil Hicks, the public defender’s office has asked an appellate court to force the county’s Superior Court judges to allow off-the-record plea-bargaining sessions.

If the 4th District Court of Appeal in Santa Ana grants that request, which was filed last Thursday, hundreds of criminal cases could be affected. Now, the public defender’s office says, many cases that could be settled are going to trial because plea-bargaining in open court would result in the release of potentially damaging pretrial information.

“Petitioners have no options other than an unnegotiated plea of guilty or the potential humiliation of a public trial, despite their desire to seek a pretrial negotiated settlement,” Public Defender Ronald Y. Butler and Chief Deputy Public Defender Carl C. Holmes said in their petition to the appellate court.

Forced public plea-bargaining began in October, 1986, after Hicks ordered his prosecutors not to negotiate with defense attorneys in private, as is customary in criminal cases. Since then, Hicks has allowed prosecutors in the county to participate in plea bargaining only if it occurs in open court and on the record.

At the time he put the policy into effect, Hicks said, “The disposition of felony cases is the public’s business and must be conducted in public.”

Butler has opposed the new practice since it was instituted, saying it imperils the rights of defendants by placing on the record such potentially damaging information as their criminal histories. In the past, he said, that kind of “privileged” information had been presented before a judge behind closed doors.

As a result of Hicks’ policy, Butler said, the public defender’s office has opted to take more cases to trial. Consequently, he said, the number of criminal juries empaneled in the county rose from 236 in 1986 to 310 last year.

This year, however, the number of trials has dropped back to normal, according to Chief Deputy Dist. Atty. James Enright. While the district attorney’s office was going to trial on 30 to 40 cases a month last year, Enright said, it has tried only 15 to 20 cases a month so far this year.

That is not a high number, Enright said, considering that about 4,000 criminal cases a year are processed through the Orange County Superior Court system.

Enright conceded, however, that the reluctance of attorneys from the public defender’s office to use the open plea-bargaining system has created a backlog in the calendar court, where cases are set for trial. Still, when it is time for arraignment in that court, Enright said, most cases that can be settled are settled before a trial date is set.

According to the petition filed Thursday, the public settlement talks drew renewed concern at the public defender’s office in March after publicity concerning a deputy public defender’s statement in open court that, if a defense motion was denied, “the D.A. cannot lose this case.”

Butler then directed his 110 lawyers to refrain from disclosing any sensitive information without a defendant’s consent.

Butler’s directive angered Superior Court Judge Myron S. Brown, who stopped appointing the public defender’s office to indigents’ cases beginning April 29. Brown, who presides over the court in which criminal cases are set for trial, instead began appointing private counsel.

However, the 4th District Court of Appeal quickly interceded at the public defender’s request and ordered Brown to resume use of the public defender’s office.

Last week, Butler issued a statement saying that he and Brown had worked out their differences and that the dispute was the result of “an unfortunate misunderstanding.” Brown has declined to comment on the dispute.

While that dispute was being resolved, Butler used Brown’s courtroom to begin building a case in appellate court against the district attorney’s on-the-record policy.

For a May 12 settlement conference, he directed a deputy public defender to refuse to publicly discuss the background of Evelyn Patricia Callejas, charged with possession of controlled substances, and Devona Kay Bryce, charged with grand theft and forgery.

When the deputy district attorney declined to go behind closed doors, the public defender withdrew the two cases from plea-bargaining consideration.

Subsequently, the public defender’s office filed the appellate petition on behalf of Callejas, Bryce and all present and future indigent defendants. The petition maintains that those indigents are deprived of their right to an appeal if a court prohibits off-the-record discussions.

“This issue is of grave concern in that the policy in question impacts almost every felony case pending in Orange County, and felony cases that will be filed in the future in Orange County,” the public defender’s petition states.

Enright, however, questioned the sensitivity of information being discussed in criminal settlement conferences. To a large extent, he said, the information concerns the defendants’ criminal backgrounds so the judge can determine whether he or she should serve time in local jail or state prison.

Enright maintained that the system was working well and had drawn few complaints except from the public defender’s office.