‘3 Strikes’-Spawned Flood of Cases Crowds Out Civil Suits : Law: Courtroom crunch delays non-criminal trials. Wealthier litigants may turn to private judges.

The case of Lucy Musharbash vs. the California Department of Transportation has nothing to do with violent crime, tougher punishment or any of the other hot-button issues that led to passage of the “three strikes” law. But the personal injury lawsuit has been swept into the judicial system maelstrom created by the legislation.

After several delays, it looked like the 4-year-old case--stemming from the accidental death of Musharbash’s husband on the San Bernardino Freeway--would finally come to trial this month.

But then the lawyers were told that there was no courtroom available in Pomona. “The judge told us they were jammed up with criminal cases because of ‘three strikes,’ ” said Claremont personal injury lawyer Michael Bidart, who represents the widow.

Frustrated, Bidart and the defense lawyer decided to drop out of the system and take the case to a private judge.

The Musharbash case is one of an increasing number of civil lawsuits that are having a tough time getting to trial these days. That is because more courtrooms that were usually reserved for civil suits must be pressed into service for criminal trials as a result of the “three strikes” law, according to judges, attorneys and court officials.

Judges said the situation will worsen in coming months, in part because criminal trials have grown longer now that more is at stake under the law.

Moreover, many more defendants are unwilling to plea bargain because of the prospect of longer prison terms.

As a sign of this trend, Cecil J. Mills, supervising judge of the Los Angeles County Criminal Courts, noted that felony filings are down 3% to 4% countywide this year, but that cases awaiting trial are up 26%. As of mid-November, Mills said, there were 7,000 felony cases awaiting trial, compared to 5,900 a year ago.

Los Angeles County Dist. Atty. Gil Garcetti has projected that as a result of the “three strikes” law, there will be 5,875 felony jury trials in Los Angeles in 1995, a dramatic increase from 2,410 in 1994.

Many of those cases will have to be heard by judges usually assigned to civil proceedings, according to Robert M. Mallano, presiding judge of the Los Angeles County Superior Court. He said the ranks of judges now hearing civil cases will be cut in half, from 120 to 60, by mid-December and added that those judges still scheduled to hear civil cases are likely to be frequently pressed into service to hear criminal trials.

“I’m really concerned,” Mallano said. “The California Constitution says that you have a right to a jury trial in a civil case. If we can’t try civil cases, it makes the Constitution like a scrap of paper.”

Legal experts said an increasing number of civil litigants, like the parties in the Musharbash case, will be forced to use the services of private judges--if they can afford the costs of $150 or more an hour--to obtain prompt resolutions of their cases.

Among those concerned about the trend is Gregory C. O’Brien, the supervising Superior Court judge in Pomona. Before passage of the “three strikes” law in March, half of the 15 courtrooms in Pomona were used for civil cases, he said. But in the past six weeks, he added, he has only been able to start three civil cases because of the criminal case overflow.

The first wave of delays came in spring after the law was enacted, O’Brien said. “Then we settled into a period of relative calm until about late summer, at which point the criminal cases began to overtake everything,” the judge said. On any given day in Pomona, a dozen civil cases are awaiting an available courtroom, he said.

“I don’t see any light at the end of the tunnel,” O’Brien said.

The reason is simple: Thousands of cases are being filed under the “three strikes” law, many involving defendants who probably would have resolved their cases by plea bargains but are now refusing to enter into such deals for fear of incurring a “strike” and a longer sentence.

From March 14 through Friday, the Los Angeles County district attorney’s office filed 6,468 first-strike cases, 3,645 second-strike cases and 1,416 third-strike cases, according to figures provided by spokeswoman Suzanne Childs.

The “three strikes” law mandates a prison sentence of 25 years to life for defendants convicted of any third felony strike if their first two felony convictions were for serious or violent crimes. The statute also provides for prison terms that are essentially double what they would have been for second-strike cases.

Two-strike cases are particularly difficult to resolve by plea because of what could happen later, Mills said. “People understand any felony can constitute the third strike.”

Criminal defendants are entitled to a trial within 60 days of arraignment and, unless a defendant waives that constitutional right, the case takes precedence over any civil lawsuit--meaning that a civil trial can be delayed or interrupted. Sometimes a mistrial must be declared.

Mallano stressed that he was not taking a position on the “three strikes” law. However, he said the Legislature failed to take into consideration all the potential consequences when it enacted the statute--including warnings from judges that the court system would find it difficult to handle all the additional criminal trials.

“This is what everyone in the system was predicting--a steady growth of cases awaiting trial and no place to send them,” said Judge Florence-Marie Cooper, who noted that in recent months she has had to interrupt a civil fraud trial and delay wrongful termination and personal injury cases to make way for criminal trials. “We’re all just trying to keep our heads above water. . . . I’m not optimistic,” she said.

As recently as Tuesday, Cooper delivered some bad news to a bevy of attorneys involved in a complex civil case precipitated by a real estate development that went awry. She told them she probably will not be able to handle their case in the near future because of the press of “three strikes” cases. She said the dispute is likely to go to a private judge, forcing the parties to pay about “$300 an hour.”

In August, a colleague of Cooper’s, Judge Stephen M. Lachs, had to declare a mistrial in a personal injury auto accident case on the fourth day of a jury trial as two doctors were waiting to testify. Lachs said the criminal courts coordinator came to him with a pressing criminal case.

When only eight of the jurors said they could come back to serve on the case after the interruption, “I was forced to mistry the case,” the judge said. The matter is now scheduled for retrial next month.

“It is one of the most disturbing things that can happen in a courtroom for judges, jurors, attorneys, witnesses, litigants,” Lachs said. “Everybody is very upset when anything like that happens. Everybody realizes that we’ve wasted a tremendous amount of time, taxpayers’ money, money put into the case by the attorneys and their clients.”

Brent M. Berman, the attorney for one of the plaintiffs, said civil lawyers know that criminal cases have priority. “But it was frustrating after 3 1/2 days to have a mistrial declared and to have to do the whole thing all over again.”

The impact of the new law is being felt throughout the county.

On a recent day in Long Beach, only one civil trial--a 5-year-old police brutality case--was being conducted, according to Arthur Jean, who will become the supervising Superior Court judge Jan 1.

“It’s a daily battle to keep that case going. The primary reason is because of the ‘three strikes’ cases. They’re going to trial. It’s an awful picture,” he said.

Superior Court Judge Richard Charvat, who is presiding over the brutality case, said he had to interrupt it once to handle a guilty plea in a felony drunk driving case.

“This will be my last civil trial for the foreseeable future,” he said.

The situation is not as bad in Santa Monica, said Supervising Judge David M. Rothman, but he too is worried.

“I would say 50% more judges are involved in criminal cases than six months ago. . . . There essentially is a doubling of the criminal cases going to trial,” even though the number of cases filed has remained steady, the judge said.

He suggested that the Legislature had implicitly made a decision “to get rid of civil litigation,” noting that it has not provided funding for additional judges since 1987. In fact, the budget of the Los Angeles County courts is $20 million less this year than last.

Rothman and others noted that there have been prior blips in caseloads as the result of new laws. However, he believes this situation is different. “The trouble with this kind of demand on the justice system is that it’s an overwhelming demand,” he said.

A drug case tried this month provides a graphic illustration of how once-routine proceedings can take far longer now. In this instance, the district attorney’s office pressed a “three strikes” case against a man arrested in Long Beach for possessing 0.88 grams of heroin--”a ball about the size of a BB,” said Special Assistant Dist. Atty. Paul W. Turley. The man had four prior felony convictions--two of them serious--and was on parole. The trial was assigned to Judge David A. Workman, who normally hears civil cases in Downtown Los Angeles, because there was no courtroom available in Long Beach.

Despite the fact that it was a very simple case that normally would have taken a day, the trial lasted four days because the man was facing 25 years to life, Turley said.

The prosecutor said jury selection took longer because the defendant had more peremptory challenges because of the possible life sentence; because more witnesses had to be called; because a chemist was called to testify about the composition of the drugs; and because a forensics expert had to be used to take the defendant’s fingerprints as part of the process of verifying that he was the person convicted of the prior offenses.

Normally, Turley said, the defendant would have stipulated to the nature of the drugs and the prior convictions--but not in a “three strikes” case, in which the defense lawyer “appropriately objected on everything related to the priors.” The defendant was convicted and sentencing is pending.

Several plaintiff’s attorneys, including Bidart, expressed concern that delays aid defendants, who do not have to pay out money as long as the status quo is maintained. These attorneys also said the delays can have broader ramifications because of the growing difficulty of bringing to trial cases involving dangerous products or hazardous conditions that affect the public.

James L. Crandall, an Irvine attorney whose clients include a large insurance company, disagreed on both fronts. “If there is a delay, it hurts both sides equally,” he said. “Insurance companies have to pay lawyers for two years rather than one year.”

Still, Crandall said he favored the law. “Even though I’m a civil trial attorney, I recognize that our trials over money are not as important as public safety. I’m not complaining about the ‘three strikes’ law at all. We probably have a safer society as a result of it.”

Superior Court Judge Alexander Williams III, who has had to delay several civil trials to hear pressing criminal cases, agreed. “We do not resent having to address our resources to protecting the public instead of keeping our doors open for fee-generating nonsense from civil lawyers,” said the former federal prosecutor, who has been a judge for 10 years.

Indeed, the fallout from “three strikes” comes amid increased debate over whether American society is too litigious and the prospect that Republican legislators will move to curb punitive damage awards.

Dan Evans, an aide to Assemblyman Bill Jones (R-Fresno), the primary proponent of the “three strikes” law, said he was not surprised to hear about the effect on civil cases.

“If you accept the statistics--and I do--that a relatively small number of criminals are committing the vast majority of crimes, and judges say we see the same people again and again in our courts . . . it’s not too much of a leap to see that for a while there will be an increase in criminal trials,” Evans said. “But after a while, that will drop off as these people . . . will be staying in prison longer . . . and they won’t be coming back to clog the courts.”

That remains to be seen, some legal experts say. Meanwhile, the increase in criminal cases going to trial as a result of “three strikes” has complicated the jobs of John Iversen, the Los Angeles County criminal courts coordinator, and John Austin, the civil courts coordinator, who have to shepherd cases through the system.

“We haven’t gotten to critical mass yet in the central courthouse,” Austin said, “but I fear it’s coming.”

Felony Trials

Here is a look at how the “three strikes” legislation, which took effect March 14, is expected to increase the number of felony jury trials in Los Angeles County.

Year Felony Trials 1992 2,416 1993 2,345 1994 2,410 1995 5,875

Source: Los Angeles County district attorney’s office