Pubdate: Sat, 28 Apr 2001
Source: Bakersfield Californian (CA)
Copyright: 2001, The Bakersfield Californian
Contact:  http://www.bakersfield.com/
Details: http://www.mapinc.org/media/36
Author: Fred Ludwig, Californian Staff Writer

KERN COURTS SEEMINGLY MORE WILLING TO DEAL

Kern County's busy courtrooms have had a lot to do with its stiff brand of 
justice.

The system has long been one in which many judges and lawyers have a 
willingness -- some say an eagerness -- to go to trial. Along with 
aggressive prosecutors and punishment-minded judges, the heavy trial load 
has helped imprison defendants in large numbers.

But the system has let up on the throttle a bit in recent years with fewer 
criminal trials, changes that became especially noticeable last year. Many 
attorneys believe the change comes at least in part from a new approach in 
which court efficiency is increasingly measured by success at reaching plea 
bargains.

Many attorneys also see subtle differences during the past year in the type 
of justice dispensed, although not radical departures from past practices. 
Presiding Judge Arthur Wallace has encouraged settlements with active 
involvement in plea discussions since taking the helm last year, many 
attorneys say.

The courtrooms are increasingly running in different rhythms, as some 
judges once used to a heavy load of criminal trials now handle more 
lawsuits and other types of duties.

Exact numbers of plea bargains were not available. But the 233 felony 
trials last year marked a 26.3 percent decrease from 1999, according to 
Kern County District Attorney's data. At the same time, the 5,271 felony 
cases filed marked a slight increase, the prosecution data states.

Before last year, the caseload had dropped steadily for several years, 
contributing to the slower trial pace.

In Kern, a hard-nosed prosecution approach shapes plea bargains from the start.

For example, a methamphetamine charge that may be filed as a misdemeanor 
elsewhere is more likely to be a felony in Kern. And Kern prosecutors often 
tack on every additional charge they can.

"Sometimes charges are filed just for the purpose of enhancing their 
settlement position," said Deputy Public Defender Michael Lukehart.

Defense attorneys call it "overcharging." District Attorney's officials say 
it's just steadfast prosecution, noting that charges are backed up by 
circumstances of the crime.

But even as some critics describe Kern charging policies as too harsh, some 
crime victims worry plea bargains still end up being too soft on criminals.

The case over a fatal drunken driving crash last year on Kern Canyon Road 
ended with Surina Castro taking a deal for a six-year term. That didn't sit 
well with Maria Franco, the mother of the boy who was killed.

"My son's life was worth way more than six years," Franco said.

Still, Franco said she believes people who make mistakes deserve second 
chances. Franco said she could have gone along with the light treatment had 
she seen some remorse by Castro.

"I know she's not sorry for what she's done," Franco said.

Plea bargains have a bad reputation but prosecutors say they provide 
justice. And they are crucial to a system that otherwise would collapse 
under a crush of cases, officials said. There are nowhere near enough 
judges or courtrooms to try all cases. Even the whopping 372 felony jury 
trials in 1996 was a small fraction of the roughly 5,000 felony cases filed 
that year.

But a general willingness to go to trial -- where the sentence may be 
higher -- strengthens a prosecutor's hand in plea negotiations, District 
Attorney Edward Jagels said.

The heavy trial numbers of previous years had put too much wear and tear on 
the system, inefficiently requiring more lawyers, clerks and other staff to 
keep up, said Kern Public Defender Mark Arnold.

"When you stretch your resources so far you run into the problem of quality 
control, and the public wants quality prosecution, quality judicial 
decisions and quality defense," Arnold said. "And they're entitled to that."

Last chance to deal

The attorneys sat together on the left side of the courtroom during the set 
of "readiness" hearings. Plea bargains are discussed at the hearings every 
Friday, and this set of sessions last year was like any other. Attorneys 
chatted among themselves, also conferring with inmate clients in the well 
of the court or clients' families in the hallway. Mostly, they waited their 
turn.

To the roughly 10 people in the public seating on the right, the situation 
was anything but routine. Some turned around anxiously whenever someone 
entered the room. One man leaned his head back on his seat, briefly closing 
his eyes.

Phyllis Goertz got kicked out for trying to get the attention of her 
incarcerated son.

"The justice system just seems so confusing," she said in tears in the hallway.

Defendants can strike plea bargains early in the process. But the readiness 
hearing -- usually held 10 days before trial -- tends to be the last chance 
to make a deal.

The presiding judge has the influential duty of overseeing the readiness 
hearing. Judge Wallace is good at getting deals at those hearings, often 
steering attorneys to a settlement, many attorneys say. The approach brings 
more plea bargains, and at times slightly lower sentences than under his 
predecessors, the attorneys noted.

"You know where you stand, and you feel you've had a fair opportunity to be 
heard," defense attorney Kyle Humphrey said. "It makes a difference."

Wallace declined to comment on comparisons between himself and predecessors.

Several attorneys said Wallace looks differently at the three-strikes 
sentencing regime for repeat offenders. Three-strikes lies at the very 
heart of prosecution in Kern, where -- unlike in some California counties 
- -- offenders with two prior convictions can get terms of 25 years to life 
in prison even for relatively minor felonies. But if the strikes are old 
and the latest offense is nonviolent, Wallace reportedly is more willing 
than predecessors to "strike a strike" -- remove a prior offense from the 
sentencing formula and forgo the 25-to-life punishment.

The number of plea bargains in three-strikes cases tripled to 74 last year, 
according to district attorney's data. The 36 three-strikes sentences were 
just more than half the 1999 total, figures show. The number of three 
strikes cases remained unchanged.

For the three-striker, it's somewhat of a gamble. The accused generally 
pleads without any guarantee of leniency, and Wallace makes the decision on 
strikes at the sentencing hearing, attorneys said.

In one set of sentencing hearings in December, Judge Wallace calmly handed 
out a series of sentences on plea bargains but got downright emotional over 
former high school football star Mario Bravo Jr.'s robbery charge, 
lamenting what he called the waste of Bravo's leadership skills.

"He's got everything going for him," Wallace said. "He's got a lot of 
(family) support. He's thrown that in the toilet."

But instead of the agreed-on five-year sentence in the plea bargain, 
Wallace gave him three years, saying he still has hope for the 20-year-old. 
Wallace then spoke directly to Bravo, almost pleading with him to turn his 
life around.

Bravo is innocent, said his mother, Delia Cisneros. The allegedly stolen 
shoes, T-shirt and other items belonged to Bravo, she said after the 
hearing. He copped a plea rather than risk a 10-year sentence if he lost at 
trial, Cisneros said.

"That scared me, and that scared him," Cisneros said.

Bravo later decided to fight the charges only to discover he would not be 
allowed to back out of the plea bargain, Cisneros said.

"Five years was a lot," Cisneros said. "Three years is still a lot, too."

Gang of four

At any given time, plea bargains are struck under the oversight of just a 
few judges. With so many cases ending in pleas, those judges exert 
considerable influence over sentences -- and consequently justice as a whole.

About five years ago, some attorneys contend, plea bargains started being 
rejected in large numbers all at once by judges Richard Oberholzer, Lee 
Felice, Stephen Gildner and Clarence Westra -- the so-called "gang of 
four." The move was interpreted by many as a tough-on-crime move to stiffen 
sentences.

"You could tell they were running the show and setting policy," said 
defense attorney H.A. Sala.

The approach by a handful of judges also appeared to make them more prone 
than other judges to rejecting defense motions, Arnold said without 
specifying the judges involved. But the shift was especially pronounced 
when it came to plea rejections, Arnold said.

He said the move came amid strong public outrage over crime, the kind of 
trend that is not supposed to enter the courtroom.

"Judges do not have constituents," Arnold said. "They are to rule upon the 
law and the Constitution. Their role is not to respond to trends."

Arnold said the rejections tapered off a few years ago.

Trial numbers rose dramatically with the rejections, Assistant District 
Attorney Stephen Tauzer said.

Jagels said he applauds the intent to "raise the bar" of justice but said 
the rejections often ignored evidence problems that cropped up 
unexpectedly. Such deals ensure criminals get at least some time, Jagels said.

But Judge Oberholzer said the shift was not aimed at stiffening sentences. 
The approach was meant to discourage inflated charges, which are less 
likely if a prosecutor knows he or she may have to prove them before a 
jury, Oberholzer said.

Judge Felice said he rejected some plea bargains after moving into a 
courtroom that gave him that duty years ago but denied coordinating the 
rejections with other judges. Felice said his rejections often were based 
on a law enacted overwhelmingly by a ballot proposition in the 1980s 
barring plea bargains for serious felonies without good reasons.

Even more deals?

Wallace oversaw the creation of a new type of pretrial hearing in October 
- -- another status conference for various types of cases similar to the 
readiness hearing, only earlier in the process. The hearings run by Judge 
Gildner are saving money by getting plea bargains sooner, Wallace said.

But Gildner's status conference sometimes comes before basic defense 
investigation is done, so defendants cannot make informed decisions about 
potential deals, defense attorneys said. If defendants don't take deals 
early on, the offers get stiffer later on.

"It shouldn't be so hard and fast that there can't be flexibility in 
particular cases," attorney Joseph King said.

In many routine cases, the strength of the evidence is clear from the 
start, Wallace said. Under the new system, the later plea offers are still 
fair ones, Wallace said.

The consistency of the new system likely will strengthen sentences, Jagels 
said. "This system minimizes the ability of the defense to maneuver in 
order to try and get in front of a judge who might be particularly lenient 
on a particular type of crime," Jagels said.

In addition to getting deals sooner in the process, the program may bring a 
permanent increase in the number of plea bargains.

Jagels said there is nothing magic about the heavy trial schedule. As long 
as stiff punishment is not compromised, the system is better off with fewer 
trials, Jagels said.

When criminal trials drop, there are more courtrooms available for 
lawsuits, family law hearings and other types of hearings that affect a 
wider cross-section of people, Wallace said.

"Those people are the people really paying for court services," Wallace said.
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