High Court Denies Bid for Public Plea Bargains : Law: Refusal to hear the case puts an end to years of controversy over whether judges must allow the public to attend pretrial talks. Defense attorneys hail the outcome.

Handing a defeat to victims’ rights proponents and the local district attorney’s office, the U.S. Supreme Court on Monday refused to order Orange County courts to conduct plea-bargaining negotiations in public.

The high court’s refusal to hear the case effectively concludes years of controversy over whether Orange County judges must permit the public to listen to discussions of potential plea bargains in felony cases. Such an open-door policy was instituted by the Orange County district attorney’s office almost a decade ago.

Defense attorneys, who have long opposed the policy, hailed the outcome as an important protection of a defendant’s pre-trial rights and a well-deserved affirmation of a judge’s authority to decide how conferences to settle felony charges should be held.

Thomas Havlena, chief of writs and appeals for the Orange County public defender’s office, said plea-bargain talks, like other negotiations, must be held in private to assure candor by all parties.

“Can you imagine labor-management negotiations held in public, or arms control negotiations between the United States and the Soviet Union going on in public?” Havlena said. “It’s ridiculous.”

Orange County Superior Court Judge Cecil Hicks, who as district attorney instructed his deputies not to participate in plea-bargain talks unless they were open to the public, did not return telephone calls seeking his comment on the Supreme Court decision.

Dist. Atty. Michael R. Capizzi, who continued Hicks’ policy, bemoaned the fact that the courts consistently sidestepped the constitutional issue of whether the public has a right to know what goes on in plea-bargain talks.

“These are proceedings that in the overwhelming majority of cases bring about the disposition of cases,” Capizzi said. “Since it’s a substitute for a jury trial, the public should have the right to find out who’s saying and who’s doing what. The public mistrusts what it cannot see.”

The case that the Supreme Court refused to hear stemmed from the passage of the Victims’ Bill of Rights, a statewide ballot initiative in 1982. In response to that measure, Hicks instructed prosecutors in 1982 and again in 1986 to refrain from traditionally private plea-bargain talks, saying secret negotiations enhanced public mistrust of a system perceived as too lenient on criminals.

Superior Court Judge Myron S. Brown, who supervised felony arraignments at the time, accommodated prosecutors by instituting “sweater conferences,” in recognition of his attire while conducting them. They represented a sharp departure from the practice in most courts across the country, which hold plea-agreement talks in a judge’s chambers.

Seated in front of the bench with a court reporter keeping a record, Brown would discuss the proposed plea bargain with defense attorneys and prosecutors. These conversations were out of the public’s earshot, but anyone who asked to listen, including news reporters, was given a chair.

In response to a challenge by the public defender’s office, the 4th District Court of Appeal in Santa Ana decided in October, 1988, that judges have sole discretion to decide when and how plea-bargain talks can be held.

Prosecutors cannot force an open policy by refusing to participate in the closed discussions, the court said. That decision is binding on courts statewide.

When Superior Court Judge John J. Ryan replaced Brown 10 months ago, however, he opted to hold plea-bargain talks in private. Capizzi challenged that decision but lost on Monday.

Although holding plea-bargain talks in public might appear to bolster the public’s right to know, Havlena said, it could distort justice. To illustrate, he offered two hypothetical situations.

If prosecutors believe that a key witness is unconvincing, Havlena said, they might admit in private talks that their case is flawed and offer a plea bargain. If they are required to negotiate that plea in public, however, prosecutors might choose to go to trial rather than openly admit the weakness of the case. That would waste taxpayer dollars on a trial likely to produce an acquittal, Havlena said.

On the other side, defense attorneys might indicate in private that their client would accept two years in prison and a fine to plead guilty to a felony count, but they would be loathe to do so if they knew their position might end up in the newspaper, Havlena said. If the plea bargain is not accepted, the defendant could appear to have admitted guilt before trial.

In the wake of a growing victims’ rights movement, a few state courts around the country have granted victims or their relatives the chance to listen to plea-bargain discussions, said Thomas C. Smith, associate director of the American Bar Assn.’s criminal justice section. But he added that he knows of no court that has made such talks open to the public at large.

Although it is good to enlighten citizens by permitting them to view the wheels of justice, Smith said, it is best to keep plea-bargain negotiations private. Plea agreements are necessary to ease the tremendous case backlogs and to dispose of cases that are difficult for the prosecution to prove, Smith said.

“It is sometimes hard for the public to understand this,” he said. “For victims, especially, they want justice. They feel shortchanged (by a plea bargain), and it looks like the prosecutor is being soft on crime. But nevertheless these things must be done.”

It would be a “mistake,” Smith said, for a prosecutor to go to trial with a weak case just to avoid the ire of citizens who do not understand the necessity of a plea bargain. If citizens object that they are being shut out of the justice system, Smith said they must realize that the process is best left to the experts--judges and lawyers.

“Unfortunately, justice isn’t best worked out in democratic setting all the time,” he said.