COMMENTARY ON PLEA BARGAINING : Felony Case Settlements: Better to Deal in Public or Private? : Such negotiations were held in open court for four years, and it served us well. The Constitution demands no less.

Michael R. Capizzi is the Orange County district attorney

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.

Felony case settlement discussions were conducted in open court and recorded during 1990 and the four preceding years. Crime victims and members of the public desiring to attend could do so. During this four-year period nearly 15,000 felonies were efficiently resolved with guilty pleas. The system worked well.

Then, early this year, a change of policy resulted in Orange County courts uniformly closing the door and denying the public access to case settlement discussions.

Open public access to the criminal process made judges, prosecutors and defense lawyers subject to public scrutiny. Each participant knew that victims and the public generally would know what transpired and why. If something irregular occurred, the public knew about it. Consequently, the public was able to place its trust in the integrity of its system and make informed judgments about governmental representatives.

Nationwide, 5% of felonies (including Orange County) are resolved by contested trial. The remaining 95% are resolved by a trial substitute, the guilty plea. Locally, many of these pleas are obtained during required court-supervised settlement discussions, which by our courts' choice are now held off the record and behind closed doors.

U.S. Chief Justice Warren Burger, 10 years ago, opined: "It is difficult for people to accept what they are prohibited from observing. To work effectively, society's criminal process must satisfy the appearance of justice, and the appearance of justice will be assured when people may observe it. The administration of justice cannot function in the dark"; people will not trust a system which attempts to do justice "in a corner" or "in any covert manner."

These sentiments were followed by rulings extending public access to the jury selection process, motions brought by defendants to suppress evidence and preliminary hearings. The Court determined a core purpose behind the First Amendment is to guarantee an informed public discussion of how criminal proceedings are conducted.

If, as the court said, a core purpose of the First Amendment is frustrated when people are refused access to criminal trials, the frustration is aggravated many times over when people are denied access to the court-supervised process of obtaining guilty pleas which resolves 95% of felony cases. It remains my strong belief that the public has a First Amendment right to attend these criminal proceedings.

Consequently, my office asked the Supreme Court to resolve the closure of these proceedings. We knew the court is able to accept fewer than 200 cases of 6,000 cases it is requested to hear annually. We also knew with the constitutionality of Proposition 13, abortion and other priority issues this may be a difficult time to obtain a hearing. Asking courts to limit the power of judges did not make the task easier.

Recently, the Supreme Court declined to hear the issue. This means that for now, local courts may prevent the public from attending court-supervised plea discussions if they so choose. It does not mean they must.

Conducting these discussions in private is not a legal mandate any more than the courtroom temperature or hours the court is in session are legal mandates. Judges have the personal choice of where to decide these matters based on their comfort level and the comfort of those attending their public forum. We hope judges will choose to conduct court supervised settlement discussions in open court with a court reporter noting the proceedings.

Justice "in a corner" will cause the public to conclude with Chief Justice Burger that "justice concealed is justice denied." Conversely, if we allow the public to see its criminal justice system operate and to engage in an informed discussion about it, we all reap the benefits--the most important of which is the public trust.

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