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Prosecution Policies Falling Short in O.C. : D.A.'s Office Needs to Address Findings of Times Study

August 06, 1995

It is disturbing to learn that in a recent five-year period, 1988-1992, only one in nine defendants arrested on felony charges in Orange County wound up in state prison.

That was the lowest percentage of the five most populous counties in the state in that same period: Los Angeles, San Diego, Orange, Santa Clara and San Bernardino. Yet Orange County spends more per capita on law enforcement than two of the counties that outrank it in the imprisonment rate, San Bernardino and San Diego.

A computer-assisted investigation of the criminal justice system in the state's five biggest counties by The Times Orange County Edition also showed a worrisome variance among charges that police believe should be brought and the less serious charges that prosecutors working for Orange County Dist. Atty. Michael R. Capizzi sometimes do lodge.

The Times used criminal justice reports compiled by county, state and federal authorities, relying most heavily on information regarding adult felony cases contained in a state Department of Justice database. Capizzi criticized the database as incomplete and therefore unreliable for comparison because the results of some arrests are not reported to Sacramento. But experts said the information is a reliable indicator of what is happening to felony arrests in a county's criminal justice system.

When police arrest a defendant on a felony charge, such as murder, armed robbery or rape, they refer the case to the district attorney's office for prosecution. Prosecutors sometimes decide to treat the case as a misdemeanor, for which conviction carries a shorter term behind bars than a felony and the term is served in county jail rather than in the tougher state prisons.

Some high-ranking police officials in the county criticized Capizzi's office for filing felony charges only if it was convinced there was no way it could lose the cases.

For more than a decade, the district attorney's office, under Capizzi and his predecessor, Cecil Hicks, has filed felony charges only if it was certain the defendant would be sentenced to state prison. But that rationale is flawed.

A defendant convicted of a felony, even if he winds up in county jail, will get a tougher sentence if he is convicted again. A San Diego County prosecutor said it was "common practice" for district attorneys to press felony cases even when state prison was not the likely sentence.

Los Angeles County and San Bernardino County prosecutors also said the likelihood of state prison was only one factor in deciding whether to file felony charges. Orange County should learn from these others and likewise treat state prison as one consideration, not the only one.

Capizzi also should rethink his office's ban on plea bargaining, in which charges are reduced if a defendant pleads guilty. Legal scholars said a ban wrongly reduces the influence of prosecutors, who should be arguing on behalf of the victims. The ban should be reversed.

One aspect of the study showed progress in Capizzi's office. The felony prosecution rate did increase year by year, with more in 1992 than in 1988, the first year of the study, especially for crimes such as auto theft and spousal abuse. Still, other counties had better percentages.

But the Times study showed there is ample room for improvement in the practices and results of felony filings in the Orange County district attorney's office. The more favorable results of other counties should not be all that difficult to emulate. Capizzi should initiate the needed reforms.

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