Judge Closes Pretrial Conferences; D.A. Objects : Courts: The decision to allow plea bargaining behind closed doors sets aside the policy of the jurist’s predecessor.


Superior Court Judge John J. Ryan, newly assigned to the calendar courtroom where most criminal cases are resolved or set for trial, locked horns with the district attorney Wednesday by ordering that pretrial conferences between lawyers be held behind closed doors.

“This court has not found any requirement that discussions, which could lead to a possible resolution of a criminal case, be (held) in public and recorded by a court reporter,” Ryan told a courtroom packed with lawyers.

Ryan’s decision, made over the objections of Dist. Atty. Michael R. Capizzi, sets aside the policy of his predecessor, Judge Myron S. Brown, who held these pretrial conferences in open court.

Capizzi said he plans to seek a full hearing on the issue before Ryan in two weeks. If Ryan doesn’t budge, Capizzi said he will take the issue to the 4th District Court of Appeal.


“The public’s business should be conducted in public,” he said.

The same issue was before the appellate court in Santa Ana two years ago. The court said then that the decision was up to the calendar judge. But panel also invited further review on the issue if that didn’t resolve it.

The controversy ended when Brown, who favored open court hearings, came up with a compromise that generally satisfied both sides of the issue.

Ryan, however, wants the hearings to be held in chambers--and off the record--where they were held for years.


Deputy Public Defender Thomas J. Havlena, who led the closed-door fight two years ago for his office, hailed Ryan’s decision.

“We’re back in line with every other county in the state, and that’s where we should be,” Havlena said. “The district attorney is welcome to pursue this, but frankly, we think it’s a dead issue.”

But not for Capizzi.

Department 5, where Ryan began presiding Wednesday, is the calendar courtroom where most criminal cases are either resolved through plea bargaining or sent out for trial. The vast majority--more than 15,000 in the last four years--are settled before trial, to avoid jamming the court system.

For years they were resolved through plea bargaining between the prosecutor and the defense attorney. But when then-Dist. Atty. Cecil Hicks eliminated most plea bargaining for his prosecutors in the early 1980s, the plea bargaining power shifted to the judges.

Closed-door pretrial conferences have long been supported by defense attorneys, who generally do not want their client’s past offenses and details of the crimes brought out in public. They contend that discussions in chambers can be more candid.

One of Capizzi’s chief lieutenants, Deputy Dist. Atty. Wallace J. Wade, made Capizzi’s objections in Ryan’s courtroom.

“The public has a due process right to know the facts upon which the judge relies” in making a decision on a case, Wade argued in a brief to the court.


Ryan denied Wade’s motion.

In a declaration to the court, Deputy Dist. Atty. Jack W. Sullens, who supervises the prosecutors in Department 5, also argued that pretrial conferences during Brown’s tenure did not deter candor among the attorneys.

He added that the presence of the court reporter “resolved a number of disputes which later arose concerning what was and was not said during sentencing discussions.”

But Judge Ryan said that if resolution of a case is reached behind closed doors, “then the agreement, and the reasons for the agreement, will be made public and placed on the record.”

Ryan also added that any crime victim involved in the case would be notified and given a chance to appear before the judge formally accepts a plea bargain.

Ryan said the reason for his decision is that closed hearings are often necessary.

“These conversations could include privileged, quasi-privileged, or sensitive matters that either or both sides don’t want to make public prior to trial.”

The judge also said he did not believe he was interfering with the public right to know. The public disclosure of any in-chambers agreement later should satisfy that problem, he said.


Prosecutors cited to Ryan decisions that said that court hearings should be open to protect the public’s First Amendment rights. Ryan disagreed that closed hearings interfered with the public’s rights.