Prosecutors and Defenders Urged to Confer on Court Reform Initiative

In the wake of Tuesday’s approval of Proposition 115, Orange County deputy prosecutors last week were learning how to implement the statewide court reform initiative, while public defenders were discussing how to keep prosecutors from ever using the measure’s provisions.

Meanwhile, most judges in the courthouse went about their business as usual.

Assistant Presiding Superior Court Judge James L. Smith said the initiative could seriously affect business in the county’s courts. But, he added: “Proposition 115 is one of those Bott’s dots in the freeway of life. It’s not going to cause any serious damage to the mechanism.”

Nevertheless, Smith said, he plans to call a meeting next week of judges, prosecutors and public defenders to discuss making Proposition 115 work.

The measure was designed to speed up the time between arrest and trial and to shorten the lengths of major trials.

For example, procedures in preliminary hearings will be shortened, because police officers will be able to provide hearsay testimony. Instead of 10 witnesses testifying, the police officer who interviewed the witnesses can testify for all of them, including the victim.

But defense lawyers say this is just one of many provisions in the initiative that curtails a defendant’s right to a fair trial. That’s why the county public defender’s office is planning either to file its own test case or to join others in the state in challenging the constitutionality of the initiative in the California Supreme Court.

The initiative, all sides agree, swings the pendulum away from individual rights and toward the district attorney, representing the people.

For example, defendants have always had a right to demand a trial within 60 days. Under Proposition 115, the people, represented by county prosecutors, have that same 60-day right.

That’s one that worries Judge Smith.

“The initiative gives prosecutors an opportunity, really, to manipulate the system,” the judge said. “If prosecutors start coming in and demanding we go to trial on all these cases within 60 days, that could jam up the system.”

Chief Deputy Public Defender Carl C. Holmes said it is too early to know how serious the friction over Proposition 115 will be in the county’s courts. But a few problems have occurred already over discovery issues, he said.

Discovery is an important legal term that in the past has meant that the accused has the right to see all of the evidence against him. Before Proposition 115, a defendant had the right to see within 48 hours the initial police report that led to charges against him. That is eliminated under the initiative.

Now it is left to the prosecutors’ discretion when to make police reports available, up to 60 days before the trial. Most prosecutors statewide generally agree that it will usually be in their interest to let a defendant’s attorney see those reports right away, to pave the way for a quick guilty plea.

However, as soon as Proposition 115 passed Tuesday, Holmes said, a few local prosecutors began balking at requests for evidence against a defendant, including police reports.

Chief Assistant Dist. Atty. Maurice L. Evans said that is one reason for the training session Friday: to make sure that all prosecutors understand Proposition 115 and that the office acts with some uniformity.

“This initiative is one of those situations where we’ll just have to feel our way along for a while,” Evans said.

It appears that the public defenders will get their way on one major issue: They want Proposition 115 to apply only to cases that came to court after Tuesday’s election.

The district attorney’s office will go along with that for now, said Assistant Dist. Atty. John D. Conley, who helped with Friday’s training. The reason: Prosecutors do not want to end up losing a good case on appeal later by insisting that Proposition 115 provisions be applied retroactively.

Such differences are why Smith said that everyone involved should confer.

“We aren’t going to set any policy; we’re just going to talk,” Smith said. “We can’t tell each other how to do our jobs, but we all work in a common environment, and this is a common problem.”

While Proposition 115 primarily intensifies differences between prosecutors and defense attorneys, one of its major provisions may pit them together against the judges. The initiative is designed to speed up trials by having judges control the voir dire, or questioning, of prospective jurors. Up until the initiative’s passage, such questioning has always been dominated by the attorneys.

“We’ve had a lot of D.A.s ask us to join in some kind of task force to get the judges to look at that section very liberally,” defense lawyer Holmes said. “Many of them don’t like it any better than we do.”

But that is yet to be ironed out. Smith said judges have a different view “A lot of judges consider that a strong section. A lot of them think there are some major economies in court time that can now be saved,” he said.

While it is too early to tell whether Proposition 115 will create a dilemma in the county, Presiding Judge Leonard Goldstein said he is not too worried.

Defense attorneys will make it work, he said, at the same time that they are fighting to get it ruled unconstitutional.

“They won’t want to shoot holes in the boat just to prove anything,” he said. “The people who practice law in this county are very civilized.”