Public Defender, D.A. in Showdown on Open Court

The public defender and district attorney offices--whose usual relationship seldom rises above lukewarm--now are embroiled in a feud that could have a dramatic effect on the way Orange County courts do business.

Public Defender Ronald Y. Butler is asking the 4th District Court of Appeal in Santa Ana to bring back the closed-door, off-the-record pretrial settlement conferences between judges and attorneys in criminal cases. That is the way the courts operated until 18 months ago.

The man who changed that was Dist. Atty. Cecil Hicks.

In October, 1986, Hicks told his prosecutors they could no longer hold private settlement conferences in a judge’s chambers. His new policy: Everything must be done on the record and in open court for the public to see.

Part of the prosecutors’ complaint had been that the closed-door session led to “deals” that they believed too often favored the defense rather than the public.

Judges, wary at first, now have adopted Hicks’ rule.

But defense lawyers despise it. They say they need closed-door conferences to protect their clients’ privacy and to produce the candid exchange needed to reach a settlement fair to their clients.

After months of complaints, the public defender’s office in May decided to challenge Hicks’ policy in appellate court.

“There is no animosity on our part toward the district attorney’s office,” explained Public Defender Butler. “But this issue is fundamental to our clients’ rights. Something has to be done.”

The Court of Appeal has asked both sides to provide more information this week. Whatever the decision, the losing side has vowed to carry the fight to the state Supreme Court.

“We feel just as strong, probably even stronger, about the issue than the public defender’s office,” said Assistant Dist. Atty. Michael R. Capizzi, who helped instigate the Hicks policy. “We are defending the public’s right to know the public’s business.”

The dispute has fueled the longstanding hostility between the two offices, which are one floor apart in the Orange County Courthouse in Santa Ana.

“D.A.’s in most counties see themselves as the guys in the white hats, but in Orange County, they think they wear 30-gallon white hats,” said Assistant Public Defender Michael P. Giannini.

Public defenders, on the other hand, “often identify with the downtrodden because they are always losing in court,” said Deputy Dist. Atty. Thomas M. Goethals.

No one disputes that pretrial conferences are crucial to the courts’ operation. In those conferences, both sides talk about the prosecutor’s evidence. Then, usually, the judge tells the defense attorney what sentence he or she is likely to give if a defendant pleads guilty--often a lighter sentence.

Most conferences result in guilty pleas, which avoids tying up a courtroom for a needless trial.

“If we didn’t settle cases and they all went to trial, the courts would be in chaos; the system couldn’t handle them,” Giannini said.

But prosecutor Capizzi said that defense lawyers predicted chaos when the Hicks policy was first announced. “I said then that the policy would work out fine, and it has,” Capizzi said. “I’ve not seen any evidence that the policy has interfered with any defendant’s rights.”

Immediately after Hicks issued his order, the number of courtroom trials for a three-month period rose from 60 to close to 100. But now the number for that period is back down to about 65.

Most judges credit Superior Court Judge Myron S. Brown for the success of the open-door policy. Brown runs the calendar courtroom, essentially a clearing house for almost all felony cases. They are either settled in Brown’s courtroom, or he assigns them to another courtroom for trial.

‘Sweater Conferences’

More than a year ago, Brown came up with what defense lawyers call the “sweater conferences.” Brown takes off his black robe, dons a sweater, and listens to lawyers on a case in a circle of chairs.

The sessions are all on-the-record, which satisfies the prosecutors’ requirement. And if anyone from the public wants to sit in, Brown sees to it they have a seat where they can hear.

Rarely does anyone want to, however, which gives defense lawyers some of the privacy for their clients they desperately seek. The courtroom is so large that people in the public viewing section cannot even hear the discussions.

Through these conferences, Brown has kept pretrial settlements at a steady pace.

But two months ago, a reporter for the Register asked to sit in on a pretrial session for Jose Luis Razo of Santa Ana, a former Harvard student who gained media attention when he was charged last year with a string of burglaries.

At the session, the public defender told Judge Brown that if Razo’s confession was permitted as evidence, “the D.A. cannot lose this case.” The Register printed the quote, and lawyers in the public defender’s office were furious.

‘The Underlying Problem’

“It helped us focus attention on the underlying problem--that we simply cannot represent our clients fairly in these open-court discussions,” said Thomas J. Havlena, who is in charge of the appellate court fight for the public defender’s office.

Some courthouse officials say a side issue got the public defender’s office fired up. A few weeks ago the county Board of Supervisors authorized $450,000 for the district attorney’s office to add six new lawyers to form a unit to intensify gang prosecutions. But some defense lawyers say privately that Hicks and Capizzi really needed more lawyers because of the open-door policy.

“So the D.A.’s office covers up by forming this gang unit, which adds more lawyers,” said one defense lawyer.

Prosecutors respond that this argument is ludicrous.

After the Razo incident, Butler began to cut back severely the number of cases his lawyers would discuss in open court. But Brown felt that defendants’ rights would be hampered with no pretrial conferences. So on April 29, he refused to appoint the public defender in four cases, saying that he had “lost confidence” in that office.

The public defender resolved the differences with Brown, and now the public defender lawyers are in open-court conferences.

Public Defender’s Claims

But in May, Butler’s team took Hicks’ policy to the Court of Appeal.

The public defender’s claims before the appellate court are twofold: 1. The court does not have the right to deprive a defendant of a private off-the-record forum for pretrial discussions. 2. The district attorney’s office does not have the right to dictate to the courts what the policy is going to be.

The public defender’s office is delighted with the first round of sparring. On Friday, Justice Thomas J. Crosby in the 4th District Court of Appeal chastised the district attorney’s side for submitting “largely unhelpful hyperbole that does not seriously meet the troubling issues raised in the public defender’s petition.”

And it is not just the lawyers who are interested in the outcome.

Phillip E. Cox, presiding judge of the Superior Court, is trying to walk a thin line down the middle.

“They (the appellate courts) are our bosses, and we’ll do what they say,” Cox said. “We can live with it, whichever way it goes.”

‘We’ve Made It So Far’

But Cox could not hide his admiration for Brown and other judges who have helped make the Hicks policy fit into the system.

“We’ve made it so far; we can continue if the appellate court says keep going like we are,” Cox said.

But to defense lawyers, the Hicks policy is unfair, even if the judges make it workable.

“You don’t see Reagan and the Russians discussing nuclear arms with newspaper reporters hanging over their shoulders to hear every word,” defense lawyer Havlena said. “They do it in private, where they can be candid with each other; that’s all we’re asking.”

But some judges say the public defender’s office is asking too much.

One judge who did not want his name used said, “It’s simply illogical to argue against conducting the public’s business in public.”