Public defender study: Riverside County juries siding with defendants

10:00 PM PST on Thursday, December 11, 2008

Richard K. De Atley The Press-Enterprise

The Riverside County public defender's office says its own study of trial outcomes in 2006 and 2007 shows jurors are deciding more often in favor of defendants, and attribute it to prosecutors overcharging criminal cases.

A ranking district attorney official says the numbers are being manipulated, and the reality is convicted criminals are still going to prison.

The defender's office review of 574 felony trials over the two-year period shows guilty-as-charged verdicts on cases handled by its office fell from 53.2 percent in 2006 to 46.9 percent in 2007.

For 392 misdemeanor trials over the two years, the guilty-on-all counts category went from 49.7 percent in 2006 to 41.8 percent in 2007.

The 2007 results from the analysis shows "Fifty-three percent of the time, the community says after trial that a felony case was overcharged," said Assistant Public Defender Robert Willey, referring to jurors' decisions.

"On misdemeanors, the community rejects the filing decision on almost 60 percent of the cases," he said.

A leading prosecutor cast doubt on the effort.

"You can create statistics by your own measure and declare victory in any situation," Assistant District Attorney Chuck Hughes said in a telephone interview. The study "concocts" statistics from a few hundred cases "while ignoring many thousands of cases" that pass through the system, Hughes said.

The public defender's office, which handles 64 percent of felony and misdemeanor cases in Riverside County, has challenged District Attorney Rod Pacheco's office criminal charging policy, saying it contributes to court congestion.

Prosecutors stand by their charging policy and said it will harm the public if they change it just to ease overcrowded courts.

The public defender's study, accompanied by sheets of case analyses, gives an unusual glimpse into the world of pre-trial offers and counter-offers by attorneys.

Those rarely appear on court records because both sides are discreet about anything that may disclose their case's weaknesses.

The study was meant to look at the effectiveness of deputy public defenders at trial and measures the ultimate outcome of their performance by analyzing defendants' sentences.

"It's not a comment on the sentence, it's a comment on the decision to go to trial," Willey said.

Positive vs. Negative

The study claims "positive" trial outcomes for felony defendants went from 39.5 percent in 2006 to 50.2 percent the following year. The positive results in misdemeanors went from 57.2 percent to 58.8 percent.

"Positive" results, under terms of the defense-generated study, does not necessarily mean an acquittal. For most of the cases reviewed, it meant sentencing was better than what either the district attorney's office or a judge offered a client as a plea-bargain before trial.

If there was no offer, the case was considered positive if the sentence was still better than what could have been expected from the defendant's exposure on the original charges, Willey explained.

The study also has a category of "negative" for when a sentence was longer than what a prosecutor or the judge had offered, and "neutral" for cases in which there was no offer from a prosecutor or a public defender's offer went unanswered.

Under terms of the study, Hughes said, the public defenders can claim a positive result because a client got less of a sentence than what the district attorney's office sought.

"But they are ignoring the fact that it's still more than they ever wanted," he said.

An example of a negative outcome was a gang case in 2007. The public defender's office opted not to counter or accept a prosecutor's offer of three years. The defendant was convicted and sentenced to seven years.

A case classified as a positive outcome was the six-count forgery and burglary case against Jason M. Brown, 32, of Riverside.

Two counts were dismissed and Brown was acquitted of the others after jurors heard expert testimony that Brown was not a bad-check passer, but actually the victim of an Internet scam.

The one-year jump in positive results "could be affected by overcharging ... asking for more than what the case deserves," said professor Stanley A. Goldman of Loyola Law School.

Several factors can affect such results, Goldman said.

"Usually there is a new filing deputy or a new policy," he said. Or the district attorney is no longer dealing on cases that "would have been dealt with previously."

Hughes said the aim of releasing the study results go beyond an internal performance review.

"(Public Defender) Gary Windom is just trying to persuade the public that the district attorney offers are too high," Hughes said. "I don't think we should give sweetheart deals just to avoid a trial."

Under an evaluation used by the state attorney general's office, Riverside County district attorney's conviction rate was 94 percent -- the highest for large-population counties in the state -- for dispositions of felony adult arrests.

The 2006 report, the most recent available online, covers all cases, not just the ones that go to trial.

"I don't think our community wants us to give felons a slap on the wrist instead of what they deserve," Hughes said.


Public Defender Gary Windom has said prosecutors are over-filing charges and making settlement offers that are not realistic, leading defendants to choose trial rather than accepting terms. That leads to court congestion, Windom has said.

"One over-filed charge can block the ability to settle a case," Willey said. "It can force everything in the case to go to trial. That is why the filing decision has such a tremendous impact."

Most cases filed in Riverside County do settle before trial. Recently released numbers from the state Judicial Council show 15,773 felony dispositions in fiscal year 2006-07 and 13,533 of those were pleas of guilty before trial.

"We do make efforts to resolve cases before preliminary hearings," Hughes said. "Naturally we disagree sometimes as to what the punishment the defendant should receive, and those cases go to trial."

Judicial Council numbers show Riverside County brought 15,773 felony cases to an end in fiscal 2006-07, and resolved 583 of them with jury trials. It used 280 misdemeanor jury trials as a way to conclude 23,038 of those cases.

In San Bernardino County, there were 20,038 felony cases resolved, but just 151 felony trials. The report said 41,215 misdemeanor cases were finalized, 108 of those by jury trial in fiscal 2006-07.

Riverside County's felony trial count appears to be second only to the 2,098 held in Los Angeles County, the state's most populous. Among the state's large-population counties, Orange County did not report a number for the study.

According to the report, there were 154 more felony and misdemeanor trials than the previous fiscal year in Riverside County.

Even a small increase can have serious consequences for an overcrowded system, Willey said. He said it would have taken three more courtrooms to handle that additional load.

Crowded Courts

Riverside and San Bernardino county courts have the worst backlogs in the state. New judges have not been added quickly enough to meet the needs of their growing populations.

With 76 judge and commissioner positions in fiscal 2006-07, Riverside County had a caseload of 6,618 per judicial position, while San Bernardino County, with 84 judges and commissioners, had 6,160 filings for each position.

San Bernardino County, however, has not faced the problems of Riverside County in terms of backlogged cases and dismissals due to lack of a judge to hear a criminal trial that has reached the end of constitutional speedy trial limits.

Prosecutors in San Bernardino County have said they take court congestion into consideration when reviewing whether to file a criminal case. Riverside County district attorney officials believe that could compromise public safety.

Defense attorneys should lose far more cases then they win, said Deputy Public Defender R. Addison Steele II.

"Prosecutors get to choose what gets charged and what gets pursued at every single trial," he said. "If they can't win, they should dismiss. If it has problems, they should deal it."

Reach Richard K. De Atley at 951-368-9573 or rdeatley@PE.com

Public Defender Trial Data Study

The study looked at results, then broke down the outcome in terms of the defendants' sentences, measured against any pretrial offer from prosecutors or the judge. A defendant could be convicted and sentenced to prison but still have a "positive" outcome if the time was less than any offer.

2006 Felony Outcomes, 256 trials*

Results: Guilty as charged: 138 or 53.2 percent, All not guilty or dismissed, 25 or 9.6 percent; partial guilty, 80 or 30.7 percent, other results,13 or 6.1 percent.

Analysis: Positive 39.5 percent; Neutral 37.1 percent; Negative 23.4 percent

2007 Felony Outcomes,

318 trials*

Results: Guilty as charged: 153 or 46.9 percent, All not guilty or dismissed, 42 or 12.4 percent; partial guilty, 97 or 29.8 percent, other results** 26 or 11 percent.

Analysis: Positive 50.2 percent; Netural 33.9 percent; Negative 15.7 percent.

2006 Misdemeanor Outcomes, 180 trials*

Results: Guilty as charged, 90 or 49.7 percent; All not guilty or dimissed, 49 or 26.8 percent; partial guilty, 29 or 16.4 percent; other results** 12 or 6.6 percent

Analysis: Positive, 57.2 percent; Neutral, 27.8 percent; Negative, 20.5 percent

2007 Misdemeanor Outcomes, 212 trials*

Results: Guilty as charged: 89 or 41.8 percent, All not guilty or dismissed, 56 or 25.5 percent; partial guilty, 43 or 21.0 percent, other results** 24 or 11.4 percent.

Analysis: Positive, 58.8 percent, Neutral, 26.9 percent; negative 12.2 percent.

Outcome definitions

"Positive" outcome - defendant either acquitted or received less of a sentence than offered by prosecutor or Judge or suggested by law.

"Neutral" outcome -- defendant had no offer from prosecution and convictions followed.

"Negative" outcome -- defendant received a greater sentence than what either the prosecutor or judge offered.

*Trials for which study results were obtained. Each year had a few more trials than the numbers used by the study.

**Hung jury, guilty plea, mistrial

Source: Riverside County Public Defender's Office

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