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High Court to Weigh S.F. Pretrail Plea Policy

San Francisco – The California Supreme Court is considering reviewing a question posed by the San Francisco Public Defender’s Office: Can James J. McBride, presiding judge of the San Francisco County Superior Court, limit to two the number of judges authorized to accept pretrial pleas and, if so, must this “new policy” be put in writing?

The issue stems from the case of Alejandro Alvarez, who reached a settlement agreement with the prosecution during a pretrial motion in July before San Francisco Superior Court Judge Kevin McCarthy. Alvarez agreed to plead guilty to grand theft and accept a six-month county jail sentence.

Although McCarthy agreed to the plea, he told the parties he was not permitted to accept it and must instead send it to Judge Charles Haines, who then rejected the six-month deal. When the defense complained, Haines explained to public defenders a new policy set forth in January by McBride that allows only two judges — Haines and Judge Susan Breall — to pre-try cases and take dispositions.

The court does not consider this practice a new, official rule – it says the change is simply protocol to provide consistency and streamline the pretrial plea process.

Criminal law professor Hadar Aviram of UC Hastings College of the Law said this is the first she’s heard of the trial court allowing only two judges to approve pretrial pleas. While attorneys tend to think of judges more as rubber stamps than decision makers in plea bargains, the judge is the deciding factor and delegating that decision to a different judge raises concerns, she said.

“It seems to violate our basic ideas on what a judge’s job is,” Aviram said.

Not only does the public defender’s office say McBride is overstepping his bounds by excluding the other judges from accepting pleas, but it also questions the validity of this “rule” that was never published or commented upon before it was enacted.

“Any policy that affects the judicial system needs to be considered and reviewed – not only in how it affects the quality of justice, but how an individual court rule would affect other counties,” said Public Defender Jeff Adachi.

His office filed for a writ of mandate – which was denied by the 1st District Court of Appeal in August – to declare invalid the trial court’s practice of limiting its acceptance of pleas to two judges.

The state Supreme Court is now considering taking up the case and has issued a stay in Alvarez’s trial court proceedings.

Meanwhile, Alvarez remains in custody, giving parties on both sides reason to believe that the court will decide quickly whether to consider the merits of the case, deny it, review it or send it back to the district court.

Attorneys for the San Francisco Superior Court are urging the state’s top court not to review the case, arguing that having only two judges approve pleas is simply a reasonable interpretation of the court’s existing rules to handle pretrial pleas consistently. The practice is not a “new rule,” they wrote in a brief filed last week – it’s just the way the court responded to the Administrative Office of the Court’s suggestion that it streamline its pretrial process.

“In studying the situation, the Administrative Office of the Courts concluded that the people and the defense were not viewing the pretrial conference as a realistic settlement forum and were regularly delaying serious plea offers until trial, jamming trial departments and stressing the jury system,” Joseph M. Quinn, a principal with Oakland’s Meyers Nave Riback Silver & Wilson arguing on behalf of the San Francisco Superior Court, wrote in his brief.

“We characterize it as an assignment protocol,” Quinn said.

He wouldn’t comment further on the case. Judges McBride and Haines said they couldn’t comment on pending litigation.

There is no rule that authorizes the presiding judge to limit the exercise of discretion of other superior court judges, Deputy Public Defender Christopher F. Gauger wrote Monday in his response brief. And no rule, he added, allows a presiding judge to issue a local rule without written publication and without public comment.

However, this argument suggests that superior courts must promulgate a new rule every time an assignment decision is made, even if the decision is a reasonable interpretation of an existing rule, Quinn argued in his brief.

If Alvarez’s prayer for relief were granted, he wrote, it would “strip superior courts of their ability to interpret existing rules in response to the many immediate demands imposed upon them.”

by Dhyana Levey
Daily Journal Staff Writer