Discussing a Case With the Judge

Orange County’s newly elected district attorney, Michael R. Capizzi, recently wrote an article for The Times (“Disposition Hearing Is the Public’s Business,” Jan. 28) that bitterly criticized the policy of the Superior Court to return to its long-utilized practice of holding settlement discussions in criminal cases in the court’s chambers.

The article labels these discussions as “disposition hearings.” The article paints an ominous picture of a judge’s giving away the criminal store in a secret proceeding from which the public is excluded. Neither the label nor the picture it paints is accurate or fair.

No state court, indeed no federal court, could survive the crush of cases that would result if every effort was not made to settle by agreement those cases that can be settled fairly to the accused and to the public. Both the U.S. Supreme Court and the California Supreme Court have agreed. The practice the district attorney decries is designed to efficiently facilitate that end, and it has proven effective in achieving that essential goal.

Discussion of a case in a judge’s chambers with attorneys for both sides present is simply a means of determining whether agreement can be reached between the respective attorneys, always subject to the judge’s approval, as to what would be fair to all in resolving the case short of trial.

The district attorney’s description of what takes place in such discussions is refreshingly accurate as far as it goes. He states: “These are court hearings in which attorneys for both the prosecution and the defense summarize the strengths and weaknesses of their cases and pertinent information about the witnesses, victims and defendant to enable a judge to determine what sentence would be appropriate.”

The article omits the fact that the judge is not bound by a sentencing opinion given at a settlement discussion. Describing such discussions as “disposition hearings” is sadly misleading at best.

Actual sentencing is always done in open court with everything recorded by a court reporter and also with the defense attorney and a deputy district attorney invariably present. A written report from the probation officer of his full and impartial investigation of all of the circumstances involved in the crime and of the full background of the defendant will be before the judge and must be read by him. The judge must hear relatives and friends of the victim who wish to speak on sentencing.

If anything is presented in that public hearing that sways the judge from his tentative opinion, he can, and sometimes does, abandon it, indicating that a harsher sentence now seems appropriate. Only at the end of that hearing may the judge impose a sentence, an action that must be taken publicly in open court.

The district attorney’s position is a one-sided emotional appeal to the public, that is, an argument for a position that our former district attorney, Cecil Hicks, took in 1982 and that was later determined to be unconstitutional. That directive was challenged in the appellate court (Bryce vs. Superior Court). The Court of Appeal ruled that this was nothing more than an attempt by the district attorney to force the court to utilize his methods to carry out the court’s business.

KEITH C. MONROE, Santa Ana