Court's Policy Leaves Poor With No Defense : Law: O.C. municipal judge routinely excluded public defenders from arraignments, formal complaint states.

By DAN WEIKEL

Jan. 17, 1993 12 AM PT

TIMES STAFF WRITER

SANTA ANA — A judge overseeing one of Orange County’s busiest municipal courts systematically prevented poor people from exercising their right to an attorney and ordered those seeking lawyers to return to jail for another week, according to court documents and a formal complaint against the judge.

With the knowledge of his boss, Judge Claude E. Whitney of Central Municipal Court in Santa Ana pursued a policy aimed at maintaining a high rate of guilty pleas from indigent defendants who, contrary to state law and six decades of U.S. Supreme Court doctrine, were routinely denied prompt access to defense counsel, court documents obtained by The Times state.

Whitney’s courtroom behavior prompted the Orange County public defender’s office to quietly seek a Superior Court order in late November to halt what the agency thought was the blatant denial of basic constitutional rights to hundreds, if not thousands, of individuals charged with minor offenses.

Even after wresting a written agreement from the presiding Municipal Court judge that state law would be followed, and after Whitney was transferred to another court, the public defender’s office believed the abuses were so serious that it filed a formal complaint this past week with the state Commission on Judicial Performance.

“This is the first time in 30 years that the Orange County public defender’s office has filed a complaint with the judicial performance commission,” said Deputy Public Defender Allyn Jaffrey, who prepared the formal accusation. “We regret having to do it this way, but we feel it is necessary.”

The voluminous complaint includes more than 300 pages of documentation to make the point that Central Municipal Court in Santa Ana was more concerned about clearing crowded court calendars than protecting the fundamental legal rights of the accused.

The Commission on Judicial Performance monitors the professional conduct of judges statewide. If violations of judicial canons are found, the watchdog agency has a variety of disciplinary powers, from simple reprimand letters to removing an offending judge from the bench.

Because state law requires the commission’s investigations to be kept confidential in most circumstances, the agency’s officials will neither confirm nor deny at this time whether a complaint has been filed.

Whitney, 61, of Newport Beach, a former family law attorney appointed to the bench in May, 1989, by then-Gov. George Deukmejian, declined to discuss the accusations. He said the proper forum to air his position was the Judicial Performance Commission.

Presiding Municipal Judge James M. Brooks, who had pneumonia, likewise declined to comment.

But Robert B. Kuhel, the clerk and executive officer for Municipal Court in Santa Ana, said that whatever problems the public defender’s office had in Whitney’s courtroom have now been solved.

Kuhel’s office, which is responsible for record-keeping and administration for the court, is reviewing some of the public defender office’s complaints to determine their validity.

Kuhel said there appears to be several errors made by court clerks on case paperwork that might have contributed to the perception that Whitney handled some matters improperly. He added that he could not be specific until the review is finished and declined to comment on Whitney’s actions.

“Everything is working just fine now, with an ongoing good relationship between the public defender’s office and the court,” Kuhel said.

Chief Deputy Public Defender Carl C. Holmes, the second in command of his office who often serves as a media spokesman, declined to discuss the situation. Jaffrey would not comment further, except to say that the public defender’s office has not encountered the widespread problems found in Whitney’s courtroom in any other court.

The complaint follows a months-long dispute between the office’s attorneys and Whitney and Brooks. According to court documents, Brooks initially resisted attempts to address the complaints about Whitney.

So far, the controversy has resulted in a formal agreement between Municipal Court and the public defender’s office to ensure compliance with state law provisions governing the conduct of arraignments and the appointment of attorneys for indigents. The agreement was filed in Orange County Superior Court in December.

About the same time, Whitney was transferred to other duties, court records show, and the public defender’s office has refused to take any of its cases before him in his new capacity.

At the heart of the matter is Whitney’s conduct after being assigned to Division 203, and a policy, espoused by Brooks, that excluded public defenders from arraignments for jailed defendants, who are often too poor to hire their own attorneys.

From July to December, Whitney was in charge of misdemeanor arraignments, important court proceedings at which the accused are supposed to be formally advised of the charges against them, informed of their rights, asked if they desire the help of an attorney, and asked to enter a plea. For those still in jail, bail motions can be be considered at that time.

Under state and federal law, defendants must be told they have a right to an attorney before arraignment, and asked whether they desire a lawyer. If so, the defendant must be given access to one. Those too poor to hire private defense counsel are routinely assigned to the county public defender’s office.

The complaint and affidavits filed with the Superior Court action state that Whitney’s arraignment court became a place where defendants were repeatedly denied access to defense attorneys, pleaded guilty in their ignorance to charges they were not accused of, bargained with the judge over guilty pleas without legal advice and were often forced into unnecessary weeklong jail stays simply because they requested a lawyer.

In addition, court records and sworn statements by deputy public defenders submitted to the Judicial Performance Commission charge that Whitney sentenced to jail those eligible for diversion programs and failed to ensure that non-English speakers knew what their rights were. He locked public defenders out of his courtroom or ordered his bailiff to remove them when they tried to talk to defendants who requested a lawyer.

Furthermore, Whitney allegedly refused to hold bail hearings, thus keeping those eligible for release on bail or their own recognizance in jail without justification.

And documentation from the public defender’s office shows that justice in Whitney’s courtroom, from arraignment to guilty plea and sentencing, was routinely dispensed in less than one minute for defendants who were acting without the advice of counsel.

“In my 12 years of practice, which includes arraignment court assignments, I have never witnessed such an outrageous violation of the integrity of the rights of individual human beings,” according to a sworn statement by Deputy Public Defender Jeff Lund, the head of operations for the public defender’s office in the court.

Court documents show that the controversy began in October when Lund received information that defendants who had been arrested and jailed were being denied their constitutional rights during arraignment in Whitney’s courtroom.

After discussing the situation with both Whitney and Brooks, Lund, in a sworn statement, said that he assigned an attorney to Whitney’s courtroom, and ordered deputy public defenders Lisa Kopelman, Sue Green and Lorene Mies to monitor the court.

In an affidavit accompanying the complaint, Lund said Whitney told him public defenders would be removed from his court if they spoke to defendants for any reason, before or during the courtroom session at which arraignments were conducted.

Similarly, Lund said under penalty of perjury that this was “the policy laid down by Judge Brooks during my earlier conversation with him.”

In their reports on courtroom activity, Kopelman, Green and Mies said they found a host of problems in every phase of the arraignment process, from the admonishment of constitutional rights to the taking of pleas and sentencing for those who pleaded guilty.

Of central importance, they said, Whitney did not advise defendants of their right to an attorney before arraignment, nor were they ever asked if they desired a lawyer. As a result, many defendants could not understand what was happening to them in court, the complaint states.

The right to counsel at every step of the criminal justice process has been firmly established in federal and state law. It is required by the Sixth Amendment of the U.S. Constitution, and has been repeatedly upheld by the U.S. Supreme Court as a fundamental right.

That year, the high court ruled in Powell vs. Alabama that the defendant “requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”

On the state level, the right to counsel is required by the California Constitution and is codified in a Penal Code section that requires the court to ask defendants whether they desire an attorney.

In the cases of those who asked for attorneys, it is alleged that Whitney would say only that he would “try” to find an attorney who might be able to speak to them, even when there was a public defender present in his courtroom.

More significantly, Whitney was quoted in affidavits submitted by several of the public defenders as regularly telling defendants that their cases would be postponed and they would be returned to jail for seven days if they asked for an attorney, an action that would have a chilling effect on the defendants’ exercise of their constitutional rights.

The complaint file also contained a handwritten note, signed by Brooks, the presiding judge, acknowledging that public defenders were “excluded” from the arraignment court. He noted that the percentage of first-appearance cases that would be resolved through guilty pleas would likely drop dramatically, if the court permitted public defenders to represent defendants there.

According to court documents, Whitney considered the presence of public defenders in his court a “courtesy” and refused to identify the attorney for defendants or allow public defenders to talk to those accused in the courtroom’s holding cell.

Deputy public defenders who tried to discuss cases with defendants said in sworn declarations that they either were ordered away from the accused or thrown out of Whitney’s courtroom.

Court records show that Lund was removed from the courtroom on Nov. 12, after Whitney informed the defendants that if they wanted an attorney they would be brought back from jail in a week to speak with one.

Lund said he politely asked Whitney to tell the accused that a public defender was present and that they could talk to him. Whitney then ordered his bailiff to remove Lund from the courtroom. Transcripts document the confrontation:

“Your honor, would the court advise the defendants that there is a public defender in court today available to them,” Lund said.

“I will not!” Whitney said. “I warned you, do not say another word or I will have you removed from this courtroom. Do you understand? Do you understand?”

“Your honor,” Lund said, “some of these people may need. . . (Cut off by Whitney).

“That’s it,” Whitney said. “Bailiff, take him out of the courtroom.”

Earlier in November, Lund’s colleague Mies said she was ordered away from four or five defendants who had lined up in the court’s holding cell to speak to her. She recalled in her sworn statement that Whitney screamed her name and loudly ordered her away from the defendants.

He reportedly warned her that if she went near the defendants again, he would remove her from the courtroom, adding that her behavior was unacceptable and it was against the law for her to have unauthorized contact with prisoners.

According to the sworn affidavits accompanying the complaint, there was a host of things that were done wrong in Whitney’s rush to judgment: The judge made only a token effort to advise defendants of their rights, and his explanations fell far short of ensuring that the accused basically understood the court process.

At the beginning of arraignment proceedings in his courtroom, the defenders said Whitney would announce his policies: the court only gives consecutive time for charges; work furloughs, community service or alterative sentences are forbidden; no defendants may be released on their own recognizance without posting bail; no bail motions will be entertained; there is a one-week delay for seeing an attorney; and pleas can be withdrawn, but it must be done before the defendant sits down.

According to the public defenders, Whitney told defendants they have a right to an attorney at all stages of the court process, but did not tell them that arraignment is a stage in the process. He also said they have a right to trial, and mentioned diversion programs without explaining them.

Reports from Lund’s deputies said that Whitney refused to do bail reviews for incarcerated defendants, a possible violation of the Penal Code. His policy, according to court documents, forced defendants to remain in jail on routine matters for which they would normally be released without bail.

When a deputy public defender pointed this out to the judge in one case, Whitney said he did not grant releases without bail and that “it did not hurt his feelings to have such a defendant remain in custody.”

Deputy public defenders say that particular problems developed with guilty pleas, which were often taken from defendants acting without the advice of counsel. According to the complaint, people were pleading guilty to charges they did not understand because they were not adequately informed of the consequences by the court.

The public defender’s office complained that in some cases Whitney sentenced people incorrectly and misinformed defendants about the sentences they would receive. For example, Whitney reportedly told one defendant that the minimum jail sentence for prostitution with a prior conviction was 90 days, when it fact it was 45 days.

Once defendants pleaded guilty, the public defenders said that Whitney repeatedly refused to explain or did not adequately explain sentences or the possibility of alternatives to jail such as diversion programs for those accused of spousal abuse and certain drug offenses.

The public defenders acknowledged that the crush of cases, which required the arraignment of as many as 44 defendants on a typical day in Whitney’s court, is partly to blame for the situation. Within the court’s self-imposed time limit for arraignments, this volume was handled on average in about an hour and 15 minutes, deputy public defenders found.

According to Mies, Whitney’s clerk, Sharon Rickles, complained that the public defender’s presence caused her to do too much paperwork. Her goal, Mies said, was to finish all arraignment cases and the paperwork by 10:30 a.m. every day regardless of the problems.

Mies reported to Lund that on Nov. 10 cases were disposed of so hastily that it was impossible to ensure that the accused understood what was going on. She said in a sworn declaration that the average case only took 42 seconds, including those that involved a guilty plea and sentencing.

“Fifty or 60 people together in a large cage, many of whom do not speak English, are summarily dealt with as though they were animals being led to the slaughter,” Lund said in his sworn statement. “It is apparent that very few of these defendants know what is going on. Particularly the Spanish-speakers have no comprehension of what they were charged with or how much total time they are being sentenced to.”

The public defenders also complained that Whitney never accepted guilty pleas in first-time drunken-driving cases, because he would be legally obligated to give probation, which they say is contrary to his announced policy. Whitney’s practice, court records state, was to reject guilty pleas, appoint the public defender and postpone the matter without releasing the defendant from jail.

Just as irksome to the public defenders are statements purportedly made by Whitney that he does not believe what defendants have to say. According to the complaint, Whitney shows a personal bias that is unacceptable for a judge, who should be fair and impartial.

To try to remedy the situation amicably, Lund said he confronted Whitney on Nov. 9. He recalled in a sworn statement that Whitney denied any problems existed and said he had conferred with others who assured him his procedures were proper.

Court records show that Lund next went to Brooks, the presiding judge, who reportedly told Lund that he preferred not to appoint defense counsel during arraignment because it slowed things down. “It is the publicly stated opinion of Judge Brooks that he is proud of the fact that the public defender is not appointed in many cases and those cases are resolved without the services of an attorney.”

According to one affidavit, Brooks has told a deputy public defender that he views their presence as an “obstacle” and an “impediment” to disposing a high number of cases through guilty pleas.

The public defender’s office contends there is evidence of a systematic plan by the court to exclude deputy public defenders from arraignments, whether or not defendants request counsel.

According to court documents, Brooks wrote a memorandum on Nov. 24, during a meeting of the Alternatives to Incarceration Task Force, which was discussing the use of videotapes to inform defendants of their rights during arraignment. Brooks’ memo, a copy of which was obtained by The Times, states that the video procedure could cut dispositions during arraignment from about 90% to as low as 45%.

“The obvious solution to this problem is to exclude the public defender from the process . . . as is currently done for in-custody arraignments in” Municipal Court in Santa Ana, Brooks wrote.

Brooks, speaking through Kuhel, said last week that he had pneumonia and was too ill to comment. But Kuhel, the court’s executive officer, said there has been no official policy to exclude the public defender from in-custody arraignments. “It would be unconscionable for the court to stop counsel from representing their clients,” Kuhel said.

Unable to resolve the situation informally, the public defender’s office sought an order from Orange County Superior Court to end the alleged abuses. On Nov. 24, the office filed a 300-page motion packed with court documents, case examples and sworn statements from deputy public defenders who monitored Whitney’s courtroom.

The motion stated that defendants appearing before Whitney for arraignment were “systematically being deprived of a myriad of their statutory and constitutional rights.” It called the problems particularly “egregious violations” of the law.

In an addendum to the Superior Court action, Lund said that on Dec. 2, Brooks called him. The conversation was friendly, he said, and Brooks indicated that he would like to see if an agreement could be reached that included the removal of Whitney from the arraignment calendar.

The next day, Lund told Brooks that the public defenders would be happy to avoid further litigation, as long as a Superior Court order would be issued to ensure that solutions to the problems were put in place.

According to court records, Brooks told Lund over the telephone that he wanted a gentlemen’s agreement and that a Superior Court order was totally unacceptable. “He cursed our office in terms that do not bear repeating herein, and hung up on me,” Lund said in a sworn statement. According to court records, “a rude, four-letter expletive” was used.

Later in the month, Brooks and the public defender’s office worked out an 11-point agreement that was filed in Superior Court. Among others things, it requires defendants to be fully informed of their constitutional rights and have access to a deputy public defender before or during arraignment.

Bail reviews must also be held, adequate interpreters must be provided for non-English speakers, and the accused must be fully appraised of diversion programs, sentences, as well as the consequences of pleas.

In another important provision, the court and the public defender’s office will review any case that went before Whitney from July to December of last year in which a guilty or no-contest plea was taken by Whitney if there is an indication it was handled improperly.

Considering that Whitney might have handled upward of 5,000 arraignments, there is the potential for many cases to be reviewed. According to the public defender’s office, the office has no idea how many defendants might be affected at this time.