Reform for the Black Robes

Maybe what’s really needed to get to the bottom of the Rampart police scandal and to make sure nothing like it happens again, Los Angeles County Public Defender Michael Judge said this week, is a Truth Commission — a task force like the ones that nations emerging from tyranny turn to for confrontation, soul-searching and amnesty before laying the past to rest and moving on to democracy.

“If they could do a truth-and-reconciliation process in South Africa, where people were murdered,” Judge said, “we could do one here.”

The longtime defense lawyer made his suggestion after perusing the 25-page report issued by a panel of criminal-justice experts that calls for significant changes in the way prosecutors, judges and others in the system ply their trades.

It’s not that Judge is unhappy with the latest task force’s conclusions. Quite the contrary. He and other defense attorneys applauded most of the panel’s 10 recommendations, including reinvigorating pre-trial cross-examination of witnesses and requiring district attorneys to keep a database of material complaints against police officers. The report could lead to major reform, Judge said — if only courts and prosecutors would follow through.

The study by the Task Force on the State Criminal Justice System, a group of 20 high-powered judges, lawyers and academics assembled by the Los Angeles County Bar Association, is not the first call for change in the wake of police misconduct. It differs from other efforts in that it looks to institutional faults in courts and prosecuting agencies. Rather than asking why police officers went bad, the County Bar panel asked why guilty pleas were offered up by so many of the 100-plus defendants who ultimately were exonerated after evidence surfaced that the officers who testified against them were liars.

What the panel found was a host of problems, some by now familiar to anyone who has followed the news in Los Angeles since the corruption scandal came to light, and some more obscure. But following through on any one of the calls for change will likely prove even more challenging than police reform.

One recommendation, for example, would require voters to reverse a major component of a 1990 initiative variously dubbed the Crime Victim’s Justice Reform Act and the Victim’s Bill of Rights. That ballot measure was passed in the wake of the notorious 18-month preliminary hearing in the McMartin Preschool case, and voters have expressed little interest in returning to the days of pretrial proceedings that last longer than the trials themselves.

“This group was not trying to go out and craft a political solution,” County Bar president Miriam Krinsky explained. Instead, the task force focused on the problems, recommended solutions, and left it to others to determine who best can accomplish reform.

In the end, though, it may not be ballot measures and databases that pose the greatest challenge to reform, but deceptively smaller issues. For example, the task force recommended that defense lawyers and their clients be given a place in the courthouse to confer. What is astonishing is that they don’t currently have such a place. Instead, defendants are bused from the jail to the court, where they are often handcuffed and hustled into a room full of other defendants, many of whom are jailhouse informants or even co-defendants who could end up testifying against them. In such circumstances, defendants are often reluctant to spill their guts to their lawyers, or even to offer information that could help in their defense.

There used to be a place in the downtown criminal-courts building for lawyers and clients to meet before appearing in court, Judge said, but the little rooms were closed off after one defendant used one as an escape route in the 1970s.

Opening up new, secure spaces might sound easy — but it would cost money, and the courts currently are facing unprecedented budget cuts.

But even more problematic than the mundane matters like building new rooms in courthouses to allow defendants their Sixth Amendment rights to confer with counsel are recommendations that courts be barred from blanket policies against granting defense continuances, or that judges allow adequate time for defense lawyers to prepare their cases.

“Those objectives should take priority over administrative pressures,” the task force said — in other words, pressure to dispose of caseloads quickly.

The recommendations were gutsy for the same reason they will be difficult to pull off: They imply that many judges do not put the interests of justice ahead of courthouse efficiency. Few judges acknowledge that to be the case — publicly, at least.

Dan Oki, supervising judge of the criminal section of the Los Angeles Superior Court, said any judge who does not give adequate time for case preparation would soon be subjected to a blanket challenge — a process by which the District Attorney’s Office or the Public Defender’s Office refuses in one case after another to permit the judge to hear the matter. The judge is soon shipped off to a non-criminal department.

“On the other hand, a defense lawyer who is given 30 days to have the case ready and still is not prepared on the day of trial should not automatically be given more time,” Oki said. “That happens a fair amount.”

Oki’s characterization of the Rampart scandal, and the court’s institutional role in allowing innocent defendants to plead guilty to avoid harsher sentences, is by no means universal. But it is typical. “I don’t know that it is fair to characterize Rampart as a huge, widespread, systemic scandal, other than the actions of a few rogue cops, improperly supervised,” Oki said.

As tough as many of the recommendations in the report were to make, and as tough as they will likely be to put in place, some observers said they did not go far enough. USC law professor Erwin Chemerinsky, who made some similar recommendations in a report for the Police Protective League two years ago, said too little was said about the pressures that move the innocent to plead guilty.

“I wish there was more analysis,” he said, “of why the system failed.”

Loyola Law School professor Laurie Levenson said she was unhappy that the task force decided not to require courts to find a factual basis for a defendant’s guilty plea. “It seems the focus of the judges is to process these cases as fast and as efficiently as possible,” Levenson said. “That’s not right. Judges are the last line of defense of the criminal-justice system. When they see something wrong, they should scream from the mountaintop.”


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