Appeals Court Deals Setback to D.A.’s Stand on Settlements

A state appellate court in Santa Ana on Friday called the basis for Dist. Atty. Cecil Hicks’ policy against closed-door case settlement “hokum” and ordered Superior Court judges to devise their own policy free of pressure from county prosecutors.

The decision by the 4th District Court of Appeal was described as a great victory for defendants’ rights by the county public defender’s office.

But Chief Deputy Dist. Atty. Michael R. Capizzi said the issue could go as far as the state Supreme Court before his office would return to closed-door negotiations.

Hicks ordered his deputies 2 years ago to stop meeting with judges and defense attorneys in private chambers, where guilty pleas often were negotiated to avoid overloading the courts with trials. The Hicks decision greatly changed the way Orange County’s courts did business, forcing such negotiating sessions into the open courtroom.

Appellate Justice Thomas F. Crosby Jr. sharply criticized the Hicks policy:

“The district attorney bases his policy on a slogan: ‘The public’s business must be conducted in public.’ This notion, while attractive, is obvious hokum . . . in the context of the criminal justice system, where secrecy is often the rule and glasnost the exception.”

Crosby added that prosecutors and the police insist on privacy during their investigations and that grand jury sessions are conducted in private. Also, he noted, police and prosecutors meet privately with judges to obtain search and arrest warrants.

Crosby also stated that it is sometimes beneficial for the parties to discuss cases in private before trial.

The issue now is how the Superior Court judges will react to the appellate court decision.

Judge Myron S. Brown, who presides over the courtroom where most of these negotiating sessions occur, more than a year ago arranged a compromise, the so-called “sweater conferences” during which he wears a sweater instead of his judicial robes.

At sweater conferences, Brown meets with the lawyers in open court--in the front well of the courtroom out of earshot of the general public. The arrangement conceded to Hicks’ demands for open courtroom sessions yet gives defense attorneys some of the privacy they seek.

Still, many defense attorneys are unhappy with the sweater conferences. Brown insists that a court reporter be present to keep a record, and if members of the public, including the news media, requests to sit in, Brown provides chairs for them.

Because the appellate court opinion was made public late in the day Friday, Brown was unavailable for comment.

However, Brown stated to the justices that he ended in-chambers conferences because he felt Hicks’ policy made it necessary. “This court would prefer . . . to decide the manner in which settlement conferences are conducted without being required to adopt a policy of either (the defense or prosecution),” Brown stated.

The issue went to the appellate court in June when the county public defender’s office complained that Hicks, by refusing to meet in chambers, was essentially dictating how the courts would conduct their business.

Justices Agree

The appellate justices agreed.

“The district attorney’s policy and the court’s acquiescence in that policy clearly offend the separation of powers doctrine,” Crosby stated.

In a unanimous opinion signed also by Justices Edward J. Wallin and Sheila P. Sonenshine, the court ordered the Superior Court to adopt and enforce its own procedures. The justices also warned prosecutors that they could not try to circumvent such a new policy by refusing to participate.

Justice Crosby stated emphatically that he was not questioning the merits of the Hicks policy because that was not the issue before the appellate court. The issue, Crosby stated, is whether the Superior Court’s existing policy is the result of coercion by prosecutors who threaten “to withhold participation if the game were not played according to their rules.”

Prosecutor Capizzi, speaking on Hicks’ behalf, said the district attorney’s office may wait to see what Brown and other judges do.

‘Can Cut Both Ways

“This can cut both ways,” Capizzi said. “Judge Brown may abandon the sweater conferences and come out in full judicial robes and conduct all settlement conferences from the bench where everybody in court can hear them.”

But Deputy Public Defender Thomas J. Havlena, who led the fight in the appellate court for his office, does not believe that will be the result.

“Judge Brown was of the opinion he had no choice but to go along with the Hicks policy. We think the court has now said he does have an option, and we hope he will exercise it to create a policy fair to both sides,” Havlena said.

Capizzi added that if the courts revert to in-chambers sessions, which defense attorneys prefer, the district attorney’s office may petition the appellate court for a new hearing, or even take the issue to the state Supreme Court.

Takes Issue With Claim

Capizzi took issue with the appellate court’s claim that the Hicks policy is based on “hokum.” He claims that the policy is based upon the intent of the state’s code on courtroom procedure.

“I’m certainly not going to use the word hokum to describe the laws of California,” Capizzi said.

Plea-bargaining in Orange County changed in other ways 6 years ago, when Hicks issued his first sweeping order that his prosecutors could no longer plea bargain in cases in which a state prison sentence was at stake.

The result of that order was that the judges took over the plea-bargaining role with the defense attorney. Now, even in the sweater conferences, the prosecutor’s role is primarily limited to informing the judge about the prosecution evidence.