Judge Calls Open Court Policy Frustrating

Orange County judges are “frustrated” with the results of a new policy by prosecutors that has nearly tripled the demand for courtrooms in criminal cases and squeezed out many non-criminal matters, according to one veteran of the Superior Court bench.

The policy, announced two months ago by Dist. Atty. Cecil Hicks, prohibits prosecutors from discussing settlement of felony criminal cases in a judge’s chambers. Instead, all settlement discussions now must occur in open court.

Defense attorneys have said, however, that they ethically cannot discuss their clients’ cases candidly in open court. As a result, most felony cases are being scheduled for trial rather than settled. And because the law requires that criminal cases be given priority when courtrooms are scarce, some foresee a backlog of civil cases.

Superior Court Judge Jerrold S. Oliver, twice named to the bench by then-Gov. Ronald Reagan, said justice is not being served by the policy.

“I’m not here to knock Cecil Hicks,” said Oliver, presiding judge among the group that hears civil trials. “I’m merely indicating that I’m concerned about justice for all the people, including civil litigants who pay the taxes to keep the courthouse going.”

Hicks’ deputies have said the policy means only that the public’s business will be conducted in a public forum. Any discussions between prosecutor, defense attorney and judge on possible dispositions of criminal cases should not be held in secret, they have said.

In the sort of discussions Hicks has banned, the judge’s purpose is “to create a climate conducive to settlement and to encourage candid evaluation of a case by each side,” Oliver said.

“I think that is what most of us as judges are frustrated about,” Oliver said in a recent interview. “By this policy we can no longer create a climate conducive to the settlement in the open courtroom of certain types of cases.”

On Monday, only one judge assigned to the civil panel--a group of 11 judges who specialize in civil cases lasting two weeks and less--was hearing a non-criminal case.

Another indication of the developing freeze of civil litigation came from Alan Slater, executive officer of the Superior Court.

Policy Called Too Broad

In November, the proportion of criminal matters headed for trial increased to 82% of 329 new cases, contrasted with 33% in September, according to statistics kept by Slater. Hicks’ policy was announced Oct. 9.

Oliver criticized Hicks’ policy as too broad.

“The policy that he has developed at the present time seems to be so broad, so that regardless of the nature of the case it allows only open-court discussions,” Oliver said.

There are many criminal cases in which frank discussion in open court would hinder the prospects for a settlement before trial, Oliver said.

Difficulties arise for defense attorneys in discussions involving a defendant’s “past conduct or prior criminal record,” Oliver said. The same problem may arise when prosecutors must assess the strengths of witnesses.

Despite the current effect on civil trials as criminal cases take more and more courtrooms, Oliver said his calendar will not feel the full impact of Hicks’ policy until February.

That is because the policy was announced shortly after the civil panel of judges began a concerted effort to clear away backlogs of pending cases. The 2-month-old program has resulted in a 50% reduction in case inventories, Oliver said.

Plan for Open Courtrooms

The plan involved scheduling no new trials for the civil panel until February. In the meantime, backlogs would have been nearly eliminated. The result would have been that attorneys who said they were ready to go to trial with civil cases would have faced open courtrooms in 1987, rather four- to six-month waits.

“The best way to dispose of a case is to have open courtrooms,” said Oliver. “The reason for the program was to be in a position so that the bar would recognize that if they were assigned (to a trial courtroom), they would face a likelihood of proceeding right on to trial.”

The impact of the additional criminal trials will be to again increase the civil backlog, Oliver said.

“The sky’s not going to fall for a while, and I’m not even sure that it ever will fall,” Oliver said. “Perhaps in a period of two months the system will be able to absorb whatever policy the D.A. may have developed.”