COMMENTARY ON PLEA BARGAINING : Felony Case Settlements: Better to Deal in Public or Private? : No arm of government conducts all its business in public. Privacy preserves the candor required for fairness.

Thomas Havlena is a supervising attorney in the Orange County public defender's office

These columns provide opposing opinions on the recent U.S. Supreme Court refusal to hear a case and order Orange County courts to conduct plea-bargaining negotiations in public.

Most criminal cases in this nation are settled when the accused pleads guilty, without trial, knowing what his sentence will be. Pretrial settlements are in the public interest when just resolutions are achieved, while saving taxpayers millions of dollars that would otherwise be spent on unnecessary jury trials. In the words of conservative former Chief Justice Warren Burger, this process is "to be encouraged."

For the process to be efficient and fair, settlement discussions must be informative, and that is achieved when talks occur in an environment where candor is encouraged.

When the U.S. and Soviet Union sit down to negotiate arms control, it's not done in public, because candor is lost when the parties cannot speak in confidence. If we want results, private negotiations are necessary. The same is true in case settlement talks.

In Orange County Superior Court, Judge John J. Ryan invites defense lawyers and prosecutors into chambers to talk about which cases can be settled without trial and how that might be done.

The district attorney, however, doesn't like this procedure and claims the settlement talks must be conducted in public. He has tried to force the court to do so, but the Superior Court, the Court of Appeal, the California Supreme Court and the United States Supreme Court have all rejected the district attorney's argument. Why? Because public settlement talks are not required by law, and they discourage candid discussions.

Informal talks permit each side to candidly express its views on the case, the strengths and weaknesses, the seriousness of the charges, the defendant's background and what a just resolution would be.

Sometimes the parties agree. When they do, there is a public hearing in open court where the victim, prosecutor and defense counsel all can address the court.

The judge may or may not accept the proposed settlement. If the settlement is accepted, the guilty plea is taken and the sentence is imposed in open court. If the judge rejects the agreement, as is the court's option, or the parties cannot agree, the case is simply set for trial. There is no lack of integrity in this much-used practice.

At these talks are a deputy district attorney, who is an experienced lawyer representing the people, the defense attorney who speaks on behalf of the accused, and the judge sitting in neutral judgment. Because the opposing sides are both represented and each can be fully heard, negotiations are done at "arm's length." As long as the district attorney has competent, ethical, hard-working lawyers on his staff, as we have in Orange County, the public interest is well served in these talks.

The district attorney's stated rationale for public discussions is that "the public's business must be conducted in public." Everything the elected public prosecutor does is "the public's business," but he certainly does not perform all of his tasks in public.

Perhaps his most important duty, that of deciding whether to file charges against a suspect, and what charges to file, is done totally out of public view. Unlike settlement talks, when charging decisions are made no differing point of view is represented. On Oct. 8, 1991, The Times quoted the district attorney as saying "the public mistrusts what it cannot see." He underestimates the public.

Voters elect the district attorney, and as long as he and his deputies are fair, effective and efficient in carrying out their duties, there is no reason for a lack of trust. The public is not well served, however, when precious tax dollars are wasted on unnecessary jury trials caused by arbitrary roadblocks to negotiated settlements.

Public settlement talks would be ineffective and costly, and the Supreme Court seems to agree.

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