Public Defender’s Success Puts D.A. in Bad Light : Justice: Some judges say the low conviction rate by prosecutors is due to policies of Dist. Atty. Edwin L. Miller Jr.

The San Diego County public defender’s office conducted a survey of its performance recently and found a surprising result: In North County, the defenders have been besting the district attorney in one of every three felony jury trials.

For the public defender’s office, the survey spotlighted the success of an office created barely two years ago to represent criminal defendants who can’t afford to hire their own attorney. But it also underscored another point. The San Diego County district attorney’s office posts a significantly lower win rate than other major California district attorneys.

Around the state, district attorney offices commonly rack up conviction rates in felony jury trials of 80% to 90%.

The North County defender survey showed a conviction rate of 67%. The district attorney’s own numbers show it near 70% countywide in two of the past three years.

Why does the district attorney seem to have a lower win rate than other major departments?

Several judges attribute the low rate to San Diego County Dist. Atty. Edwin L. Miller Jr.’s policies--particularly, an insistence to routinely charge as felonies a number of crimes that other county prosecutors pursue as less-serious misdemeanors.

That is not the only policy that may be at work, though, judges said.

Miller’s office rotates a case through a number of deputy prosecutors before it gets to the attorney who actually tries the case--so no single lawyer has the chance early on to decide whether a case is weak and should settle. By comparison, the public defender generally assigns a case to one lawyer for the duration.

Judges also said that the district attorney does not allow trial deputies to decide independently whether a case should settle or be taken to trial. Instead, the deputy, who likely is busy, must consult with a supervisor, who probably is also busy, about a plea bargain.

In an interview with The Times, Miller defended his filing policies and vigorously contested any assertion that his office is not doing its job well.

He said that when his office files felony charges, it is not a question of overcharging--just following the law. And he said his office resists plea bargains so that serious cases can be tried as felonies.

He also said his internal statistics show that the San Diego district attorney’s office sends more people to state prison than any other county except Los Angeles. That, he said, proves that thousands of criminals are agreeing to felony plea bargains that, by definition, had to have been properly charged.

The district attorney’s internal statistics also show that its felony conviction rates have gone up since the public defender’s office was created, he said.

And he said that judges are more interested in one thing above all else: moving cases along rather than submitting to time-consuming trials.

“What (judges) would like to do is get rid of cases,” Miller said. “They would like to get rid of cases by persuading us to change our disposition policies. Just because we have a period of time in which we have a number of acquittals doesn’t mean we should change our policies.”

Vista Superior Court Judge Vincent DiFiglia said the acquittal rate in his courtroom--where he hears felony trials--is 50%. The district attorney is “proceeding with cases that are very weak” on the evidence, he said.

DiFiglia urged the district attorney to vest the front-line trial deputies with discretion to settle.

“They’re the ones who are intimately familiar with the facts of the cases, and are able to judge the kinds of impression witnesses will make on the stand,” he said.

Superior Court Judge Kevin Midlam, the North County presiding judge, said he concurred. If a deputy district attorney repeatedly made poor decisions, the remedy is to see that the lawyer moves to another job, he said.

“If the process is working right--and, remember, I’m a guy who started out 25 years ago as a prosecutor and then was a defense lawyer--if the prosecution is working well, they ought to be (around the) 90th percentile with respect to convictions--if they’re charging right, if they’ve got all their witnesses--because they’ve got all the marbles,” Midlam said.

In Orange County, for instance, the district attorney won a conviction in about 90% of the felony jury trials in 1989, said Chief Deputy Jim Enright.

In Los Angeles County, which just this year began keeping statistics on conviction rates, deputy district attorneys won 85.3% of their felony trials during the first six months of 1990, said Sandi Gibbons, an office spokeswoman.

But according to the North County public defender survey, the San Diego district attorney’s office won only 35 of 52 felony trials, or 67%.

The public defender won 12 acquittals and five cases were dismissed after the jury deadlocked, said Larry Beyersdorf, the North County public defender supervisor who directed the survey.

The conviction rate was even lower for misdemeanor trials in Vista Municipal Court, where the San Diego district attorney won only 59 of 110, or 54%, according to the survey. The 51 others either resulted in not guilty verdicts or dismissals by a judge after a hung jury, Beyersdorf said.

The statistics were compiled by asking each North County deputy defender to list his or her last 10 trials and the result, Beyersdorf said. Some deputies had more than 10 trials, some had less, he said.

Since trial time varied, the survey reasonably could be expected to document the prior four to six months, he said.

Beyersdorf said he tried his utmost to categorize verdicts fairly. For instance, if a case involved a number of charges, and a jury returned several not-guilty verdicts but just one guilty verdict, that counted as a conviction, he said.

Misdemeanor acquittal rates are always higher than felonies, prosecutors and defense lawyers said.

In part, that’s because it’s not uncommon for new prosecutors just out of law school to learn how to try cases by trying misdemeanors. That’s precisely the policy in San Diego, Miller said.

However, said Beyersdorf, new public defenders also are typically assigned first to misdemeanor trials. He said the public defender simply should not be doing so well.

“We should be taking more cases to trial and losing,” he said. “If you win 10% to 20% at trial, that’s a good job by defense lawyer standards.”

Miller, however, said statistics show that the district attorney’s office has actually been doing a better job since the public defender arrived.

The public defender was created in May, 1988, and began operating in July, 1988. It replaced a small staff of civil service lawyers and private attorneys that had been ridiculed in national circles for its inefficiency, costliness and spotty quality.

In fiscal year 1988, when the patchwork system of civil service and private lawyers was in effect, 70%, or 51 of 73, defendants tried by a jury in San Diego County were convicted of felony charges, Miller said.

In fiscal year 1989, which--like the public defender--began in July, 1988, the district attorney registered an 82% conviction rate in felony jury trials, 125 of 153, Miller said.

In fiscal year 1990, which ended last June 30, it was 73%, 111 of 152, he said.

The figures do not break out for either 1989 or 1990 the precise number of jury trials contested with the public defender, he said.

Public Defender Francis J. Bardsley said there was another way to look at the district attorney’s figures. While Miller’s own numbers show that the number of felony trials each year has gone up since the public defender came on the scene, the defender figures indicate that the conviction rate appears to be headed down, he said.

The district attorney’s 82% rate in 1989--the defender’s first year of operation--was significantly higher than the 1990 rate, 73%.

“After two years of analysis, we’re trying more cases, the acquittal rate is quite high and we’re still saving money,” Bardsley said. “It’s a win-win-win situation for everybody, it seems.”

Miller was skeptical about that conclusion:

“The public defender system is supposed to save money,” he said. “I don’t know that we have the answer to that question yet. What I do know is that the cost of (taxpayer-funded) criminal defense in San Diego now exceeds the cost of prosecution.”

Last fiscal year, Miller said, the district attorney’s budget was about $35 million.

Meanwhile, the public defender cost about $17 million, Bardsley said. The county paid another $14 million to private defense lawyers, to handle death penalty cases and those where the defender had a conflict of interest, said Elliot G. Lande, director of the county’s Department of Alternate Defense Counsel.

That’s $31 million. “I think Miller is mistaken, frankly,” Lande said.

Among all the numbers, Miller said, the important statistic is the count of people his office sends to state prison. Last year, that figure was 2,247--second in the state, behind Los Angeles, with 11,412--and up 8.5% from 2,071 in 1988, Miller said.

No. 3 Orange County sent 1,344 in 1989, he said. That’s 67% fewer than San Diego, he said.

“What that means is that (other counties’) charging policies are so restrictive compared to us, that there are many instances in which people are not being charged with a crime who should be,” Miller said.

He said he intends to see that felonies remain felonies in San Diego County, even if other counties treat them differently.

“It’s a good policy because the (law) declares that it’s a felony,” he said. “There have to be cogent reasons to treat it any other way,” such as “a total lack of proof.”

For instance, he said, his office policy is to file car theft as a felony, though other counties may treat it as a misdemeanor.

The policy deters other thefts, he said. And a prior felony conviction can enhance a subsequent sentence, he said.

He added, “I fear that some members of the judiciary treat auto thefts as if they’re akin to the theft of a candy bar. Unless we treat them as felonies, these thefts are going to get even worse.”

Midlam, the North County presiding judge, said criminal cases that should settle but get taken to trial simply clog the courts. Left behind are not only more worthy criminal cases but hundreds of civil cases, which already have given up their place in line to criminal cases because of a defendant’s right to a speedy trial, he said.

“I have to make sure my court runs efficiently,” Midlam said.

That’s also why the district attorney’s policy of not allocating the trial deputies the responsibility of settling cases may be suspect, he said. And why the public defender may be onto something by keeping the case with one lawyer rather than shuffling it around, he and other judges said.

The Vista Municipal Court is ready to implement a plan Jan. 1 that would essentially keep a case with the same judge, the same prosecutor and the same defender. It opted for that program months ago, without regard to the defender survey, hoping that it will force both sides to know cases better, said Judge David W. Ryan, slated to be the court’s 1991 presiding judge.

Since it costs $4,000 a day--or about $8 a minute--to run a single Municipal Court courtroom, it makes sense to settle cases rather than go to trial, Ryan said.

Miller said he opposes the program, calling it “inefficient.”

“What invariably happens is that these cases run into some kind of conflict and the case has to be assigned to another court,” he said. “Sometimes the attorney can’t go with the case because he’s required to be in the (first) court and, consequently, the case is kited,” or handed off to another deputy.

Miller defended his policy requiring a supervisor to check off on a deputy’s plea bargain as “quality control.”

Young lawyers, especially, may not have enough experience to judge the worth of a case or may be intimidated by a judge pressing hard for a plea bargain, he said.

“We believe it’s sounder practice to clear those agreements (with a supervisor) before we make a decision we might regret later,” he said.

The policies will remain in force, he said. Another constant, he said, is this: “Invariably, good cases result in pleas and tough cases go to trial. It has always been thus.”