This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

No Deal

By Alexandra Brown | Jul. 2, 2008

Law Office Management

Jul. 2, 2008

No Deal

In Riverside County the courts are struggling with an extraordinary backlog of cases. How did it happen? Many blame Rod Pacheco, the county's tough-talking district attorney, who rarely gives in without a fight.

D uring his long career as a prosecutor, Riverside County District Attorney Rod Pacheco had done everything from putting gangbangers behind bars to sending murderers to death row. But one thing he had never done was attend a "bake sale" with a group of judges.
      The idea came up in 2003. Pacheco, a Republican who a year earlier had returned to the DA's office as a chief deputy after spending six years in the State Assembly, recalls being dispatched to a meeting with local judges to discuss the county's growing backlog of untried criminal cases. "They said they needed to fix the system," he recounts with an incredulous smile. "They said they wanted to hold a 'bake sale,' and put all the old backlogged cases on calendar for one day in one department. They told me, 'You're going to cut your offers, and we'll get rid of all the cases.' " Pacheco promised to discuss the request with his boss-Grover Trask II, who was DA at the time-but not before declaring, "I don't agree with it, and we're not doing it."
      Looking back on the "bake sale" proposal-which Trask also eventually nixed-Pacheco acknowledges he made no friends. "The judges got very mad at me," he remembers. But that didn't change his mind. As he told the assembled jurists back then, "We have an obligation on every one of these cases to reach a just result. These cases aren't widgets."
      Five years later Pacheco himself is the DA, and he still refuses to cut corners. "I'm going to remain true to my principles," he says. "We're not going to move cases [through dismissals or expedient plea bargains] just because someone's inconvenienced."
      A stocky man with a commanding presence, the 50-year-old Inland Empire native can be both blunt and folksy. His father was in the Air Force for 23 years and held down a second job as a night clerk in a liquor store. His mother worked for the local draft board and later as a real estate agent. Pacheco considers himself fortunate to have gone to college (at UC Riverside), and even more fortunate to be admitted to the University of San Diego School of Law. He graduated in 1983 and says launching his career in the DA's office back in Riverside was one of the best professional decisions he ever made.
      A less fortunate turn came after his second return to Riverside-this time from the Statehouse in Sacramento-when the backlog of untried felony cases in the county began to mushroom. In the county's western district alone, the backlog ballooned from an estimated 400 cases in 2003 to more than 1,315 last September. And several times over the past four years, the county has been forced to suspend civil trials to make every judge available to hear criminal matters.
      Even though Riverside County's 69 judicial officers-including 20 commissioners-were working harder than ever, they continued to fall further behind. In fiscal 200506 the jurists faced an average per-judge load of 6,500 cases, about the same as the average load in neighboring San Bernardino County (6,704). But while San Bernardino courts, with seven more judges, conducted a total of 272 criminal jury trials that year, Riverside handled 709. Clearly, more cases were settling just across the county line.
      That put Pacheco in the eye of the storm: Critics accused him of aggravating the situation with his policy against plea bargaining in "serious" felony cases-for crimes involving murder, rape, sodomy, robbery, and kidnapping. "The district attorney is in many ways the gatekeeper of the system," says Associate Justice Richard Huffman of the state's Fourth District Court of Appeal. And Pacheco, he adds, "is not as willing as some other prosecutors to negotiate settlements, so you end up with a higher number of trials." And a mounting backlog of cases awaiting trial.
      "By mid-2007, the courtroom-congestion problem had truly become unconscionable," says Gary Windom, who since 1999 has served as Riverside County's public defender. "Felony defendants, on average, were logging 26.9 court appearances before being sent to trial. A full 7 percent of our felony cases were taking a year to get out of arraignment before being assigned to a trial department. Something had to be done."
      In June 2007, after three years of study by county officials and the Administrative Office of the Courts (AOC), state Supreme Court Chief Justice Ronald M. George dispatched a "strike team" of twelve retired and out-of-county judges led by Justice Huffman to try felonies and help ease the backlog. The AOC also hired a nationally recognized court consultant-John Graecen of New Mexico-to help the county restructure and streamline its criminal court calendar. And early this year three additional strike-team judges were added to handle the civil docket, setting up courtrooms in space leased from a former elementary school in Riverside.
      The strike team began its work last July, tackling the county's oldest cases first. By all accounts, the effort has paid solid dividends: The felony backlog was brought below 1,150 by year's end and, more important, the rate of increase in the backlog was reversed. Although the team initially was scheduled to work only through December 2007, a skeleton crew of six judges was authorized to continue through June. At the same time, Huffman brought county leaders together and secured an agreement to reorganize the county's criminal-justice operations to a "front-loaded" system similar to San Bernardino's; since March three courts have been devoted exclusively to promoting settlement of felonies prior to preliminary hearings.
      With this progress, a new sense of optimism is now evident in the county. "We're very hopeful," says the county's presiding judge, Richard T. Fields. "We have very experienced judges, and we're going to give them more opportunities to resolve more cases."
      Still, there are reservations. "It's going to take a total life-changing commitment from all parties-judges, defense lawyers, and prosecutors-for the new setup to work," says PD Windom. And though he hopes the changes will ultimately succeed, he cautions that "all stakeholders will have to bend a bit." That, of course, includes the district attorney.
      As Pacheco sees it, there is no simple explanation for the mess Riverside now finds itself in. "The problem [of the backlog] both is and is not unique to Riverside," he says, "and there's a subtlety and a nuance that sometimes people miss."
      First and foremost, Pacheco points to Riverside's extraordinary population growth-at a rate that's made it one of the fastest-growing counties in the country. "I remember when they didn't have freeways" here, he says, reflecting on his boyhood in Riverside. "It was a sleepy little place. As a kid, when we'd go to L.A., there would be gaps [along the road] with no houses." Today, the gaps have disappeared. Freeways crisscross the landscape, and the county population shot past 2.1 million last year, up a whopping 76 percent since 1989.
      Such growth would, of course, seem to warrant additional courts and judges, but the going has been slow-constrained, in Pacheco's view, by both political foot-dragging in Sacramento and the state's ongoing budget shortfalls. "We need more courts," Pacheco says, "and they weren't being provided by the Legislature or the governor." As proof, he points to a 2007 AOC study that found-given the county's caseload-Riverside should have no fewer than 133 judges, nearly twice the number it had in 2006. Although the state has appointed seven additional judges since then, staffing remains more than 40 percent shy of the AOC's recommendation.
      A second factor in the court congestion, says Pacheco, is a shortage of jail space. With the county's crime rate and population, he believes, the county's jail should have about 10,000 beds. Currently, it has 3,600. "Our jail is just too small," he says. "If you are arrested in Riverside for a misdemeanor, you won't do any time. In fact, you won't even be booked."
      As a result, he argues, felony defendants find "there's no risk in going to trial." Defendants, he says, can simply sit back and wait rather than plead guilty at an early stage. That in turn "increases the number of cases set for trial and puts pressure on the bench to offer quick fixes," Pacheco says. "Defense attorneys were going to the judges and saying, 'It's really congested out there, the DA is being unreasonable, and we need a lower offer from the court.' So the judges got actively involved in plea bargaining." In fact, Pacheco says, judges often drastically undercut the prosecution's recommended prison sentences, which then encouraged defense attorneys to push even more cases to trial in the hope of obtaining last-minute deals.
      Tensions between Pacheco and the local courts came to a head in January 2007, when Superior Court Judge Gary Tranbarger dismissed two misdemeanor cases for failure to ensure a speedy trial. The cases-one involving charges of vandalism and the other illegal dumping-came before Tranbarger on the last day that each could legally be set for trial. (Under Penal Code sections 1049.5 and 1382, felonies must be brought to trial within 60 days of arraignment, and misdemeanors within 45 days if the accused is out of custody-unless the defendants waive their speedy-trial rights. If dismissed, felonies can be refiled once; misdemeanors cannot.)
      Tranbarger, then the county's supervising criminal court judge in charge of the master calendar, determined that no courtrooms-criminal or civil-were available, and ordered the cases dismissed. His ruling-particularly his refusal to send the cases to probate, family, or juvenile courts-opened a wound that is still festering.
      Pacheco appealed the order, which was upheld by a panel of three Orange County Superior Court judges selected after Riverside's superior court appellate department declared a conflict. Pacheco petitioned the state Supreme Court, which granted review of the Orange County ruling and transferred the matter for further consideration to the Fourth District Court of Appeal, where it is still pending (People v. Superior Court (Gurdian), No. S159289 (Cal. Sup. Ct., March 12, 2008)).
      Pacheco also directed his deputies to begin "papering" Tranbarger, routinely alleging he was biased against the prosecution. The tactic was so effective that Tranbarger was taken off the master calendar and reassigned to a civil courtroom, where another high-profile confrontation between the two erupted in April 2007. That involved a death-penalty prosecution, which had been sent to Tranbarger on an overflow basis.
      "I'm out of the loop," Tranbarger says today, declining to rehash his relationship with Pacheco. Pressed for comment, he refers to an op-ed he published in Riverside's Press-Enterprise in January 2007. In the piece, he attributed the county's case backlog not just to the shortage of judges but to Pacheco's plea-bargaining policy, charging, "Only Riverside County has a DA's office that disavows any responsibility to manage the problem."
      Pacheco responded with a Press-Enterprise op-ed of his own. Without mentioning Tranbarger by name, he wrote, "In the district attorney's office each case will be considered, each victim protected and justice served. Our legal and moral obligations will be met, regardless of one man's convenience or comfort."
      Unlike Tranbarger, Pacheco continues to speak his mind to reporters. "I think Tranbarger had a lot to do with [the growth of the backlog] while he was in master calendar," Pacheco says, alleging that Tranbarger sometimes overstepped judicial boundaries. "I'm informed we had a gang case with three defendants that he severed into three separate cases on his own motion. When asked why, he said it was due to 'court congestion.' I think he deliberately increased the backlog for whatever his [real] purposes were."
      According to Pacheco, Tranbarger and a handful of other local judges also exacerbated the backlog by excessively indulging defense attorneys' requests for continuances in what he termed a "culture of continuance." Pacheco also alludes-only half-jokingly-to end-of-week golf games that he says slowed the wheels of justice even more. "You could set off a canon in the courthouse on Friday afternoon," he says. "We're in the most congested courthouse in the nation, and where the hell are they?"
      Not everyone, of course, sees things Pacheco's way. "Judge Tranbarger absolutely did nothing egregious," maintains Public Defender Windom. "He looked at the problem [of court congestion] and tried to solve it by getting the DA to make better offers and be more reasonable in his charging policies." According to Windom, Pacheco's office files charges on "98 to 99 percent of the cases that come through the door, a higher figure than in any other county."
      Defense attorneys also bristle at the suggestion that they contribute to unnecessary delays. "Judges can only try a given number of cases at any one time," says Steven Harmon, who heads Riverside's Indigent Defense Panel, which provides representation in cases when the public defender is unavailable. "If continuances were not granted, more cases would come flooding to the surface and be subject to dismissal." Indeed, since Tranbarger was replaced in the master calendar by Judge Helios Hernandez, the county's courts have dismissed 14 additional cases-11 of them felonies-on speedy-trial grounds.
      While the backlog continues to focus attention on the criminal courts, frustrations also have mounted within the civil bar. "For us, it's really an access-to-justice issue," says David Bristow, past president of the Riverside County Bar Association and a senior attorney and shareholder with Reid & Hellyer in Riverside. Courtrooms normally reserved for civil cases have been pressed to take up criminal calendars, creating a civil backlog as well, according to Bristow. "If there's no threat of a pending trial on the civil side," he says, "the chances of settlement dwindle to zero." And though the stagnation hasn't yet affected his firm's bottom line, Bristow notes that counsel must remain in a constant state of readiness should a civil case find an open courtroom, which in turn "drives up the cost of litigation for clients."
      No matter how many judges are assigned to settlement calendars, to many observers Pacheco will remain the key player in any long-term resolution of the litigation logjam. "The DA holds the real power here, with his discretion over charging and settlement," says defense attorney Harmon. "If he decides to put more emphasis on settlement, that will help the system. If not, I don't know how [the new framework] will play out."
      But should the DA be forced to abandon his principles? "We all have to realize that no one in this mix was elected, other than the DA," says Harmon. "He ran for and won election, and he has a right to define his role as he sees fit. We all may wish he saw that role a little differently, but we haven't been elected."
      Pacheco says he understands both the criticism and the role he must play. "I'm fully committed to the new system," he insists. "But it's important to realize that a system is only as effective as the people who implement it. To make the new system work, we're going to need trial judges on the back end who honor the settlements proposed on the front end. If that message gets sent, then cases will settle on the front end, because defense attorneys will say, 'It isn't going to get any better with the next judge.' "
      For his part of the agreement negotiated with Justice Huffman, Pacheco has pledged to staff the new court system at all times with supervising deputies authorized to resolve cases at the earliest possible time. He's also obtained county funding to hire four additional supervising deputies. And though Chief Justice George turned down Pacheco's request to extend the tour of the remaining six strike-team judges through this December, he directed the AOC, under its Assigned Judges Program, to continue appointing retired judges to fill in for Riverside judges when they take vacation or sick leave, budget permitting.
      Still, Pacheco seems disinclined to budge on plea bargaining for serious felonies, which make up as much as a quarter of his office's caseload. "The law is very clear," he says. "Once an information [the charging document issued after a preliminary hearing] is filed in those cases, there can be no plea bargaining.
      "I've been running for office since 1996, and I'm used to [both] fair and unfair criticism," he continues. "Sometimes they write the greatest article about you, and it looks like your mom wrote it. Next week, they say you hijacked the train and stole the gold. But I get letters, phone calls, and run into people all the time. They never come up to me and tell me, 'You have to be easier on these criminals, you have to plea-bargain more.' "
      Exactly what this portends for Riverside's chronic court congestion, no one-not even Pacheco-can accurately predict.
      Bill Blum is an administrative law judge and frelance writer in Los Angeles.

Alexandra Brown

Daily Journal Staff Writer

For reprint rights or to order a copy of your photo:

Email for prices.
Direct dial: 949-702-5390

Send a letter to the editor: