Plea Deals Under Scrutiny

Top managers in the Orange County district attorney’s office have increased their scrutiny of plea bargains negotiated by prosecutors in recent months and have started reviewing old cases in search of errors, the head of the prosecutors’ union said.

The efforts have left some prosecutors afraid to negotiate plea bargains without approval from their bosses and could result in a legal logjam with more criminal cases going to trial, said Chris Kralick, who heads the union representing more than 200 deputy district attorneys.

“The deputies are concerned they’re going to face disciplinary action if they enter into a disposition of a case that management feels is inappropriate or embarrassing to the administration,” Kralick said.

Orange County Dist. Atty. Tony Rackauckas won broad support from prosecutors when he ran for office in 1998 because he vowed to overturn his predecessor’s ban on plea bargains. Rackauckas said he trusted their judgment and would allow them to settle cases without the strict oversight they faced under former Dist. Atty. Mike Capizzi.

Now, managers in the office have told deputies that they should consult a supervisor if they are not pursuing “three strikes” or other life-imprisonment cases. And senior prosecutors in high-profile units have been instructed to document their case decisions in “trial notebooks,” something previously required only of inexperienced prosecutors, Kralick and other prosecutors said.

“It’s definitely a departure from his campaign promise of four years ago,” Kralick said.

Rackauckas did not return a call seeking comment.

Defense lawyers said they began noticing a change in October, the same month that Deputy Dist. Atty. Randy Payne was placed on administrative leave amid questions about his handling of a sexual assault case. The defendant in that case later became a suspect in the high-profile kidnapping of a Salt Lake City girl but was eventually cleared. The district attorney’s office has declined to comment on the reason for Payne’s suspension or how long it might last.

“After what happened to Randy, it seems everyone is real jumpy,” said Orange County defense lawyer Ronald Brower. “Even in misdemeanor cases, I’ve experienced a reluctance of deputy D.A.s to enter into negotiations they previously would have without hesitation.”

Brower and other defense lawyers said that because of prosecutors’ increasing inflexibility, they are negotiating case settlements directly with judges, leaving prosecutors out of the process.

“In the last month or two, I’ve seen the front-line deputies are much less willing to make a decision without talking to a supervisor,” added veteran defense attorney Gary Pohlson. “It seems to me it’s evidence that they have less and less discretion ....It slows down the system.”

Statewide, about 90% of criminal cases are resolved by guilty plea, most of them hashed out in pretrial negotiations.

Under Capizzi, supervisors in the district attorney’s office decided at an early stage what sentence the office would offer on a case and deputies were not allowed to deviate from that during plea negotiations.

Prosecutors complained that the policy squeezed them out of the negotiating process. Often, sentences were hashed out between judges and defense attorneys.

When Rackauckas took office, he issued a policy that empowered prosecutors to use their judgment in plea negotiations, a move that was widely praised within the office and the county’s justice system.

In recent months, however, some prosecutors said they’ve been told by their bosses that top management is unhappy with the number of plea bargains in the last few years. Deputies also said they’ve been told to increase the number of cases they take to trial.

“We’ve been told, ‘Get those trial numbers up,’ ” said one prosecutor, who spoke on the condition of anonymity.

Kralick and other prosecutors said they are especially concerned that managers are reviewing prosecutors’ past decisions, saying the office should instead focus on training deputies about how they should handle pending cases. They acknowledge that it is difficult to formulate policy about sentencing because all cases are different.

Another deputy district attorney who declined to be identified said Payne’s suspension has put prosecutors in the office on edge.

“The problem is nobody knows what it is that Randy did that upset people. That’s something we’re all curious about,” the prosecutor said.

“None of us know if we’re transgressing in the eyes of the 10th floor [the administration]. If we run afoul of what somebody upstairs thinks, we’d like to know. It’s only fair to give us a clearer idea of what they want us to do.”