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Approaches to Felonies Differ--as Do Results : Crime: D.A. defends O.C. filing philosophy, but other counties do it differently--and more successfully.

A QUESTION OF JUSTICE. Why Orange County Doesn't Measure Up. Second of two parts


"I don't care if someone gets 30 days in county jail for a residential burglary," Boyle said. "You can still get the strike. Priors are important for sentencing. There are lots of reasons to prosecute felonies that are not necessarily state prison cases."

San Diego County prosecutors believe a prior felony conviction can do many other things: add to a offender's prison time after a second criminal conviction; allow the prosecution to impeach a defendant or witness at a criminal trial; and deprive convicted felons of certain rights.

"One of the ways our office has looked at this is, 'How many bites of the apple do you want a suspect to get?' " explained Chuck Nichol, a San Diego County prosecutor now in charge of the office's appellate training division. "It is common practice for district attorneys to issue felony cases where state prison is not the likely sentence."

"We hang tight on felonies," said George W. Kennedy, the Santa Clara County district attorney. "We believe that felony probation is a good hammer. Misdemeanor probation is meaningless. You just go back to county jail--that's not much incentive. But with a felony, if you violate probation, it can be hasta luego " -- off to state prison for several years.

David R. Ross, a Los Angeles County deputy district attorney who has written statewide guidelines for filing criminal charges, said the possibility of sending suspects to prison is only one of many factors his office uses in deciding whether to file felony charges.

"It is definitely something we look at," said Ross, who chairs the committee on charging standards of the California District Attorneys Assn. "If the person belongs in prison, we will try to file a felony. It is a good test. But it is not the only criteria."

San Bernardino County prosecutors agree.

"We certainly have a large number of cases where we see felony conduct, or where a felony is warranted, that we don't think are going to end up in state prison," said Gary Fagan, the supervising deputy district attorney. "But we file a felony anyway, because it activates prior [conviction] sections [of the state Penal Code] that provide enhancements at sentencing."

Unintended Consequences?

Chief among the differences between Orange County and other counties is a 14-year-old ban on plea-bargaining by prosecutors in felony cases--a policy Capizzi said his office was forced to adopt because he and his immediate predecessor believed judges had grown soft on crime in the late 1970s, offering sentences lower than what prosecutors demanded.

Two national organizations--the National District Attorneys Assn. and the American Bar Assn.--encourage the use of plea-bargaining as a necessary means to move cases through an overburdened criminal justice system that could not possibly conduct trials for all criminal defendants. Prosecutors in California's other large counties openly engage in the practice of bargaining to help manage how criminals are prosecuted and sentenced.

Plea-bargaining bans are "a lot of rhetoric that borders on demagoguery," said former San Diego County Dist. Atty. Edwin L. Miller. "There are a lot of reasons to dispose of a case at a certain level and it has to do with whether it's the fair thing to do, and whether justice is being done."

Under Orange County's ban, prosecutors can discuss possible guilty pleas with defense attorneys and judges. But they cannot become involved in traditional plea-bargaining, which is the offering of concessions in charging or punishment in exchange for a guilty plea that avoids a costly trial.

Some exceptions apply: if evidence problems threaten a successful prosecution; if critical witness testimony cannot be secured; if a reduction in charges will not affect the sentence; or if the "interests of justice" demand it.

Under a 1992 revision to the policy, before any discussion of a plea can take place, local prosecutors must pick a sentence they think is appropriate, note it in their case file and stick to it unless an exception arises.

Although Capizzi and Hicks have long touted the ban, the policy has not ended plea-bargaining, only handed more responsibility for it to the very judges Capizzi and Hicks have complained about for years.

Defense attorneys, judges and even some members of the district attorney's staff say the policy amounts to little more than political posturing to appear tough on crime, and might have actually compromised the power of prosecutors to influence the outcomes of their own cases.

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