ORANGE COUNTY VOICES : Disposition Hearing<i> Is</i> the Public’s Business : Justic: Conducting the proceedings in open court enhances the successful operation of the system.

In Orange County, a controversy has arisen over the extent to which the public and the news media may observe the operations of the Superior Court in conducting criminal “disposition hearings.” These are court hearings in which attorneys for both the prosecution and the defense summarize the strengths and weaknesses of their cases and pertinent information about the witnesses, victims and defendant to enable a judge to determine what sentence would be appropriate.

For the last four years, these hearings have been conducted in open court, and a court reporter has recorded them. Recently, a new court policy has been adopted that closes these hearings from public view and disallows the court reporter from documenting them.

It has long been my opinion, and the policy of the district attorney’s office, that the manner in which criminal cases are resolved by the court is the public’s business and that, except in the most compelling circumstances, felony disposition hearings that the court conducts are statutorily and constitutionally required to be conducted in open court and to be recorded by the court reporter. Court disposition hearings in public enhance the successful operation of the criminal justice system because the public’s presence will ensure that the judge has been given accurate information with which to make a sentencing decision.

This view is based on controlling constitutional, legislative and decisional authorities that make it clear that First and Sixth Amendment guarantees cannot be satisfied by any procedure that would effectively preclude the public and press from a critical step in the justice process.

The opposing view, that holding disposition hearings in public will inhibit the successful operation of the criminal justice system, is historically and logically erroneous. The experience of the last four years in the Criminal Department of the Orange County Superior Court has demonstrated that plea discussions can be done in public and on the record without hurting the system. An estimated 15,000 cases have been resolved in the master calendar court following public, on-the-record discussions. More than 90% of our felony cases have been resolved without trial on the basis of such disposition hearings.

Despite this historical evidence, opponents of open hearings contend that openness will not result in a sufficient number of dispositions because the participants will not be candid about the strengths and weaknesses of their cases.

But there is no logical reason why hearings in open court on the record should inhibit candor. It is correct that “candor” could be inhibited--if by “candor” we mean inappropriate, loud or foul language by the attorneys or statements about the case, the defendant, the victim or the witnesses which are unsubstantiated, rash or flatly untrue. But this is not candor.

Some people have suggested that a middle-ground solution would be to have the judge conduct a closed hearing first and then attempt to have the attorneys place on the record a summary of what was said in chambers. Such a practice, however, would be an unnecessary and unduly time-consuming duplication of effort. That “solution” invites inaccurate, incomplete recollections of what was said in chambers, and it does nothing to increase public confidence that what is said in open court really reflects what was said in chambers.

In addition, there is often a significant lapse of time, sometimes days, between the off-the-record disposition hearing and the on-the-record formal sentencing. This lapse of time magnifies the possibility of inaccurate recollection. Closed hearings also interfere with the rights of crime victims to be effectively heard at the more formal sentencing hearing because they lack knowledge of what the judge may have heard in chambers so don’t know what they must overcome if their statements are to have a valid impact.

Removing from open court the discussions that form the judge’s impression would essentially deny the public access to the process by which guilt is established and judgment determined in all but a small minority of cases.

That is not a policy for a free and open society.