Jury Out on Speedy-Trial Initiative : Courts: Prop. 115, approved by voters last June, is indeed quickening the pace of the criminal-justice system, authorities say. But questions remain about the validity of some of its provisions.

SAN FRANCISCO —  A year after its passage, the extensive procedural reforms of Proposition 115 are quickening the pace of criminal justice in California, authorities say.

With time-consuming preliminary hearings being sidestepped or shortened, and judges taking over the questioning of jurors from attorneys, early signs point to significant savings of court time.

Nonetheless, the measure remains far away from full implementation--and judges, prosecutors and defense attorneys are still awaiting the outcome of legal challenges to key provisions that opponents say violate the rights of criminal defendants.

“While it’s too early to draw firm conclusions, everything we have seen indicates that (the initiative) does speed up the process,” said state Appellate Justice Daniel J. Kremer of San Diego, chairman of the state Judicial Council’s Advisory Committee on Criminal Delay Reduction. “But questions are still pending in court over whether the proposition is valid. Are the trade-offs in swifter procedures legal under the Constitution?”

Proposition 115, backed by a coalition of prosecutors and victims’ rights advocates, was passed by a 57% majority last June 5. The measure provided for an array of constitutional amendments and statutory changes aimed at reducing delays in court, and sought to limit the constitutional rights of criminal defendants. Even a year after its enactment, however, there is still hot debate over the merits of the measure and questions over how its provisions are being applied.

Los Angeles Deputy Dist. Atty. Albert H. MacKenzie says Proposition 115 is clearly realizing its promise and anticipates even more success as legal doubts are resolved in its favor.

“Other states have had similar provisions for years and years,” MacKenzie said. “All we’re doing is picking up what the rest of the country has already been doing.”

But Michael Rothschild, a Sacramento defense lawyer and president of California Attorneys for Criminal Justice, says some provisions are not being consistently enforced and are proving unworkable. Key parts of the measure still may be struck down in court, he adds.

“What we have here is legislation by mob rule,” Rothschild said. “I think 99.9% of the people who voted for 115 hadn’t the foggiest idea what it did, other than the claims of politicians who said it would speed the process.”

Ironically, some prosecutors fear that with judges now performing sometimes superficial questioning of jurors, the number of acquittals and hung juries will increase. In San Francisco, jurors who for inexplicable reasons will never vote to convict are wryly known as “artichokes”--and some prosecutors worry that more of them will slip onto juries under Proposition 115.

“Remember, the defense needs only one vote to win,” said Assistant Dist. Atty. James F. Costello, alluding to the legal requirement that verdicts of guilt be unanimous. “If they get one of these people on the jury, your case goes down the toilet.”

Among other things, the measure:

* Allows a defendant to be brought to trial either through the grand jury or through a preliminary hearing. It reverses a controversial 1978 state Supreme Court decision granting defendants indicted by grand juries a right to a preliminary hearing. Under Proposition 115, cases can go right from the grand jury--where there is no opportunity for the defense to cross-examine witnesses--to trial.

* Permits officers with five years’ experience to testify at preliminary hearings as to what they had been told by witnesses during a criminal investigation. That eliminates the need for those witnesses to appear at preliminary hearings--and be exposed to sometimes lengthy cross-examination by the defense.

* Requires that with some exceptions, felony cases must proceed to trial in 60 days and mandates that court-appointed attorneys be ready for trial within a certain time.

* Directs that judges, rather than attorneys, conduct questioning of prospective jurors. It is now primarily up to jurists to detect signs of bias, refusal to follow the law or other problems. The aim is to reduce the time it takes to select a jury--frequently made longer by detailed and extensive questioning by attorneys.

In December, the state Supreme Court struck down a provision of Proposition 115 that required state courts to defer to the U.S. Supreme Court in defining the rights of defendants, but upheld the rest of the measure against claims that it violated a rule limiting initiatives to a single subject. Then in April, the state high court broadened the measure’s effect by allowing its new procedures to be used in crimes committed before its enactment.

But those decisions, while important, represented only the first in a series of rulings that authorities say will be required from the justices before the legal boundaries of the measure are clearly drawn.

One case to be heard June 10 by the state Supreme Court tests a provision requiring that 30 days before trial, the defense and prosecution reveal the names of witnesses they intend to call (other than the defendant), any statements those witnesses have made and any expert reports, such as the results of physical, mental or scientific tests.

While prosecutors have long been required to disclose their evidence before trial, the state Supreme Court in 1970 ruled that it was up to the prosecution to prove guilt without the help of the defendant.

Under Proposition 115, the pretrial revelation of evidence becomes a two-way street--and in the view of prosecutors, aids the “truth-seeking” function of the criminal process.

“This will go a long way toward eliminating the gamesmanship and surprise,” said state Deputy Atty. Gen. Karen Ziskind. “Very often, the defense puts on half-truths at trial--and then we’re not able to investigate sufficiently” before the case goes to the jury.

Defense attorneys counter that the initiative wrongly forces defendants to assist in obtaining their own convictions, violating the guarantee against self-incrimination.

“This provision, on its face, is unconstitutional,” said Los Angeles Deputy Public Defender Albert J. Menaster. “California law (on pretrial exchange of evidence) has always been favorable to the defense. . . . To uphold 115, the court would have to overrule 30 years’ worth of cases going the other way.”

Another case the justices are expected to hear this fall involves the provision that allows experienced police officers to present hearsay, or secondhand, testimony during preliminary hearings.

The aim of that provision is to speed a process that can take weeks, or even months, in complex cases, and to reduce the number of burdensome and sometimes emotionally draining court appearances required of victims and other witnesses.

But foes of the measure say the use of hearsay unfairly denies defendants their right to confront and question accusers.

Because of impending legal challenges and other uncertainties, implementation of those and other changes has been slow and sporadic around the state, officials say. But preliminary indications are that in those areas where the changes have been put into effect, proceedings have gone markedly faster--particularly in questioning jurors.

In a survey of 14 state trial courts, the state Administrative Office of the Courts reported last fall that there had been “dramatic time savings” from judge-conducted jury selection.

Lawyers, judges and other authorities interviewed in recent weeks largely agree. In Kern County, Deputy Dist. Atty. Jeffrey Even estimates jury-selection time has been cut 50%. Los Angeles Superior Court Judge Gary Klausner, supervisor of the criminal courts, credits the jury-questioning provision, along with other reforms, with significantly reducing delays.

“Everybody thought this initiative was going to have devastating effects on the system, but like most everything else, the system has accommodated it,” Klausner said. “The results are positive. It has sped up the process and made the process more efficient.”

One intriguing question raised often about the measure is whether less-intensive juror examinations by judges are leading to more acquittals and deadlocked juries. While definitive data are still months away, some prosecutors are fearful that it has.

“This (judicial questioning) may be producing some problems at trial,” said Michael Sweet, director of the California District Attorneys Assn. “Some district attorneys don’t like that. They’d rather have the opportunity themselves to question jurors and do a more thorough and comprehensive job.”

In one locale, San Francisco, the rate of acquittals in felony jury trials rose from 11% in 1989 to 19% in the five months after Proposition 115 was enacted. Authorities in other jurisdictions--including Los Angeles and San Diego--say there has been no significant change in conviction and acquittal rates. Throughout California, the state Administrative Office of the Courts also reports no sharp changes: in the year ending last June 30, 77.4% of the felony jury trials ended in convictions; in the next six months, the rate was 76.6%.

Swifter proceedings also are being reported in preliminary hearings, where prosecutors can now let officers tell witnesses’ stories through hearsay.

And using the grand jury, and thus avoiding a preliminary hearing, also is paying off in many instances, prosecutors report. In San Diego, Assistant Dist. Atty. Richard J. Neely cited a massive drug sweep called Operation Red Rag, in which nearly 100 suspects were indicted by grand jury rather than charged by prosecutors and given preliminary hearings.

“Preliminary hearings would have taken months,” Neely said. “With the grand jury, we were able to collect all the evidence and get indictments in just a few days.”

Critics of 115 say that while jury questioning and other proceedings may be moving faster, some “speedy trial” provisions are not being imposed in some courts simply because they cannot be enforced.

Rothschild, of the California Attorneys for Criminal Justice, contends that many judges, with the support of prosecutors, are declining to impose time limits for going to trial and for attorney readiness.

“They know that to require attorneys to say they will be ready to try a case in 60 days is unworkable,” Rothschild said. “To enforce it, they would have to double or triple the number of court-appointed attorneys and require public defenders to handle one or two cases instead of the 25 they are handling now.”