UNIFICATION GIVES SANTA CLARA COUNTY A CHANCE TO FIX ONE OF THE LEAST
EFFICIENT OF THE STATE'S BIG SYSTEMS

IN 1994, the criminal courts in Los Angeles County were teetering on
the verge of collapse, paralyzed by a backlog of more than 8,000 cases.

The state's new ``three strikes, you're out'' law was threatening to
clog the courts further. The board of supervisors, the district
attorney, the police, the sheriff's department and the media all were
blasting inefficiency in the city's criminal justice system.

``I called a meeting of the 100 judges in the criminal courts and read
them what people were saying about us,'' recalls John Reid, the
supervising judge of the criminal departments in the Los Angeles
Superior Court. ``I asked, `Are you enjoying being criticized?' The
answer was, `No!' I asked, `Do we have a response?' Again, the answer
was, `No.' I said, `Well, we have to respond.' We left that meeting
with a consensus that we had a problem, and had to do something about
it.''

Los Angeles then overhauled a court system that dwarfs any other in
California, slashing its backlog by thousands of cases and winning
praise from judicial reformers statewide.

``If we can do it with so many judges,'' Reid says, ``a smaller county
ought to be able to do it, too.''

In fact, counties up and down the state have responded to the ``three
strikes'' law -- which mandates a 25-years-to-life sentence for third
felony convictions and thus gives defendants less incentive to avoid
trial by plea bargaining -- and complaints of inefficiency by
revamping their criminal courts.

But change has been slow to come to Santa Clara County. Since the
mid-1980s, the criminal courts here have been stuck in the past,
refusing to experiment despite suffering the same types of problems as
the Los Angeles courts. Like the local freeways at rush hour, the
courts here are caught in a legal gridlock.

Historically, judicial reformers in San Jose have been treated like
heretics. When Superior Court Judge Robert Foley was presiding judge
in 1992, he suggested combining the Municipal and Superior Courts into
one unified court. The result?

``I was vilified by my court (Superior Court) and just savaged by
(Municipal) court,'' Foley recalls.

For years, the criminal courts have been dominated by a group of
senior judges who preside over some of the county's most complex
cases. They preside over trials that usually are conducted Mondays
through Thursdays and often go home early or go golfing on Fridays.
They are comfortable with this schedule, and most have resisted
efforts to change. Even a judge like Foley, who once tried to reform
the system, has taken up golf on Fridays.

Change arrives Voters permit merger of courts

This summer, some changes finally did arrive. The 79 judges of
Municipal and Superior Courts agreed to merge into the Bay Area's
largest single court under the authority of Proposition 220, approved
by the state's voters in June. Proponents of unification say the
merger provides the judges with a chance to transform the court into a
more streamlined, efficient system that serves a vast urban area like
Silicon Valley.

But according to interviews with judges and officials in a half-dozen
counties around the state, major change must start where it did in Los
Angeles: with judges' attitudes.

``The key is to get all the judges to realize they have a problem,''
says Reid, the architect of changes in Los Angeles. But getting judges
to agree on anything is difficult.

``Judges pride themselves on being independent,'' Reid observes.
``Their courtrooms are fiefdoms.''

One local deputy district attorney describes the attitude in Santa
Clara County's criminal courts as, ``This is the way it has been and
always will be.'' Like many lawyers, judges and court officials
interviewed for this report, the prosecutor insisted on anonymity for
fear of alienating judges with whom he must work.

``What bothers me most'' about the handful of senior judges, says one
prominent defense attorney, ``is their unwillingness to work with the
members of the bench to solve these problems, and you do have a
problem when you have 900 cases on the docket. It's been difficult for
the presiding judges to get them to work with them.''

The judges disagree, and pin the blame for the problems in the system
on a shortage of public defenders, prosecutors and judges.

If change comes, it could not come at a more crucial time, based on
statistics compiled by the Judicial Council of California and a recent
audit of the courts commissioned by the county.

Santa Clara County's criminal court system is among the least
efficient of the largest counties in California, plagued by a
persistent backlog of felony trials.

There also are deep divisions among sitting judges. Judges in criminal
departments view judges in civil departments with suspicion, and vice
versa. And there is longstanding resentment within the courts over the
Friday work habits of some of the veteran criminal judges, many of
whom have handled the same types of cases for years despite a system
designed to periodically rotate judges' assignments.

When the Superior Court voted to unify this summer, eight judges voted
against it and two abstained. And while that vote was secret, it is
known that some Hall of Justice judges who leave early on Fridays
vocally opposed the merger before it occurred.

A troubling rift

Judges send an indignant letter

One Superior Court judge calls the rift in the judicial culture the
``cancer that is eating away at the courts.''

The rift has stifled change. Even as the courts were preparing this
spring to unify, judges appeared reluctant to embrace change. When the
audit was released in May criticizing the court and attributing jail
overcrowding to the sluggish pace of cases moving through the criminal
courts, the judges reacted with an indignant letter.

Speaking for the court, Steve Love, the court's executive
administrator, said there are no structural flaws in the criminal
courts and blamed the problems on a shortage of public defenders,
prosecutors and judges.

``Attributing jail overcrowding to inadequacy in the judicial process
misses the mark,'' Love wrote. Jail overcrowding is a ``consequence of
inadequate numbers of public lawyers [deputy district attorneys and
public defenders] and judges, not the [judicial] processes
themselves.''

In short, Love delivered the same answer the courts have been giving
since the 1980s: The courts do not need to change. They need more
money for more judges and more lawyers.

The judges' response virtually ignored a number of the audit's
recommendations, some of them ideas already being used in other
counties. Among them are:

Video teleconferencing to arraign inmates in custody, which would
decrease time and transportation costs from the Elmwood Correctional
Facility to the criminal courts, and back.

Establishing night courts. By hearing criminal cases in four courts at
night, judges could lessen the backlog ``without additional courthouse
construction or lease costs.''

More diligently following the court's own guidelines for
``packaging,'' or sentencing a defendant convicted of multiple charges
all at once, instead of separately on each charge.

The courts' response also ignored the audit's central recommendation:
To enact the kind of sweeping changes put in place in Los Angeles County.

In Los Angeles, the judges agreed to experiment with different ways of
processing cases, starting with stricter enforcement of state judicial
rules meant to discourage the repeated postponement of trial dates.

Los Angeles also adopted a different system for assigning cases to
judges, known as direct calendaring. Modeled after the federal court
system, direct calendaring means that cases stay with the same judge
from start to finish, from the time a defendant is arraigned through
his trial.

Proponents of direct calendaring say it has one definite advantage: It
provides a quick and accurate way to measure judicial efficiency. If
cases keep moving through a judge's courtroom, it generally means the
judge is adroitly managing court matters. If cases stack up on a
judge's docket, the judge cannot place the blame on anyone else.

The alternative, master calendaring, is used in a majority of
California courts, including Santa Clara County's. Master calendaring
relies largely on the availability of judges to pick up cases.

But its local detractors say that master trial calendaring allows
judges to refuse to take cases, which adds unnecessary delays. The
older a case gets, the longer police officers, witnesses and victims
have to wait to testify. And the longer defendants sit in the county
jail.

Proponents of master trial calendaring say the system can prompt the
settlement of a case because a judge with an open courtroom might be
available at any time. And, the old adage in the legal system is,
``nothing settles a case like an open courtroom.''

The National Center for State Courts has studied the calendaring
debate for 30 years and has not resolved the issue, according to its
experts. But John Goerdt, a top administrator for the Iowa state
courts and until recently a researcher with the center, puts it this
way:

``Individual calendars would provide the basis for the electorate to
assess the productivity of judges. The very fact of making a change
causes people to refocus on what they are doing.''

If Santa Clara County adopted a direct calendaring system, judges
would no longer be able to refuse a case if they were conducting a
trial. Each judge would be assigned an array of cases, and would be
responsible for each case, from the defendant's first appearance in
court to sentencing.

Positive results

New calendar system reduces backlog

In Los Angeles, direct calendaring contributed to reducing the backlog
by thousands. Before the changes, the average criminal courtroom had
150 cases pending; today, it is 60. Three percent of the cases in the
Los Angeles courts have aged a year or more, compared with 8 percent
in Santa Clara County. Instead of chiding the criminal courts for
their poor performance, the Los Angeles County Board of Supervisors
issued a citation praising the courts for saving the county $1 million
in operating costs.

The criminal courts in other counties have been through a cultural and
structural reform process that parallels the one in Los Angeles.

Increased cooperation among judges in San Francisco's criminal courts
helped slash their backlog from 559 cases last year to 380 this
spring. In the wake of ``three strikes,'' Orange County set up a
program that focuses on the early resolution of felony cases.

``Two-thirds of our cases settle early on,'' says Alan Slater,
executive officer of the Orange County Superior Courts. ``That allows
us to concentrate on the difficult cases that need to be tried. It has
helped us with the `three strikes' cases and it has helped relieve the
backup in the jail. It has really saved our bacon.''

Marin County went to direct calendaring after ``three strikes'' became
law. So did Santa Barbara County.

``Judges like the continuity and being responsible for their own
caseloads,'' says Gary Blair, executive officer of the Santa Barbara
County Superior Court. ``A much higher percentage of cases settle
because judges know more about a case.''

The courts in Sacramento County, among the most admired in the state,
unified and changed their system six years ago. Judges in five Home
Courts work under a direct calendaring system and handle felonies from
arraignment through preliminary hearings. If a case goes to trial, it
is farmed out to a trial judge.

The changes are seen as a savior in Sacramento, where judges say they
always find plenty of work to do five days a week.

``Every judge is potentially available when you don't have artificial
distinctions between two courts [superior and municipal],'' says Mike
Roddy, executive officer of the Sacramento courts. ``We are able to
use Fridays efficiently, for short causes like preliminary hearings.
It's basically about getting the work done.''

One key for Los Angeles County was to reduce the number of
continuances -- agreed-upon delays -- by more strictly enforcing the
section of the penal code that says that if public defenders cannot
proceed to trial on a case within 60 days of arraignment, they will
not be appointed to represent a defendant.

Judges in Santa Clara County have been permissive about postponing
trials whenever a public defender or district attorney asks for a
break, a time-honored practice in most overburdened systems.

``At times, there's unnecessary delay simply for the sake of delay,''
says Al Weger, a local assistant district attorney. ``Neither side
[the defense or the prosecution] are having their feet put to the
fire, and the courts could put a stop to that.''

Local proponents

Some want to see L.A. changes adopted here

Weger, for one, would like to see the local courts adopt a direct
calendaring system. His boss, District Attorney George Kennedy, also
advocates a switch to direct calendaring.

``There's not enough accountability by the judges, not to the degree
you would have with direct calendaring,'' Weger says. ``Each judge
could evaluate how efficiently he handles a case. It would make us
more responsive, too.''

Some delays are necessary, and veteran criminal judges say they do not
want to push an ill-prepared case to trial, only to have the decision
reversed later by the appeals courts. But all too often, local judges
grant continuances instead of insisting that a case go to trial, say
many lawyers in the system.

Or, a judge will instruct the prosecution and defense to make one more
attempt to settle the case before proceeding to trial -- even though
numerous settlement conferences have failed to produce a result.

``In our county, a case is sent out multiple times for discussions, so
there is really no incentive to have a serious talk at the beginning
because you are going to have five or six more,'' says Michele
McKay-McCoy, a deputy district attorney.

Superior Court Judge Jack Komar, who will become presiding judge of
the new unified courts in January, defends the judges who leave early
on Fridays, but says he'll use a unified court to implement changes in
the criminal system.

Komar plans to experiment with direct calendaring in three satellite
courts, in Palo Alto, Sunnyvale and San Martin.

To distribute the workload more evenly, Komar plans to have judges
take on a broader range of cases. He promises there will be plenty of
work for judges on Fridays.

If nothing else, judges who have typically handled only long trials
will be available to take on preliminary hearings. Judges determine in
preliminary hearings whether prosecutors have enough evidence for a
defendant to stand trial on felony charges. Previously, such hearings,
which are usually short, were the responsibility of judges in
Municipal Court.

But whether these changes will go far enough, whether they will make
the criminal courts more productive and reduce the backlog, remains to
be seen.

``Twenty years ago, this was a relatively small court and there was an
informal judicial culture,'' says federal Judge Jeremy Fogel, a
longtime Santa Clara Superior Court judge and a respected expert on
judicial ethics. ``The problem now is, the courts have gone from a
relatively small organization to a large one, and there isn't the kind
of oversight and accountability you need in a large
organization.''

Checked-by: Patrick Henry