D.A. Fares Well in Audit Ordered by Grand Jury

SANTA ANA — A long-awaited audit commissioned by the Orange County Grand Jury paints a generally positive portrait of the district attorney’s office but also raises questions about its plea-bargaining policy and the way it handles some misdemeanor cases.

The grand jury hired the accounting firm of Price Waterhouse to perform what it described as a “routine management audit” last year as Dist. Atty. Michael R. Capizzi came under criticism for his prosecutions of county officials caught up in the 1994 bankruptcy.

The study, released Monday, notes the district attorney’s high conviction rates and caseload-to-attorney ratios compared with other counties. But it also found:

* The district attorney’s office allows police to issue citations rather than seek misdemeanor charges against people accused of graffiti vandalism, littering and other “quality of life” crimes. The grand jury questioned whether Capizzi should follow the lead of other areas like New York and be more aggressive in these cases.

* Prosecutors sometimes take weeks to file some non-custody misdemeanor cases, leading some defendants to believe wrongly that their cases have been dropped, since charges had not been filed when they show up for court. Because many are transients, notices of later court dates sent by mail often don’t reach them. The next time they encounter police, they are treated like fugitives and jailed, aggravating the jail overcrowding problem, and reducing revenues from fines.

* Capizzi’s policy of not engaging in plea bargaining is criticized because it has placed an undue burden on the Superior Courts and hasn’t prevented judges and defense counsel from negotiating reduced sentences. Critics believe Capizzi’s policy undermines the credibility and influence of prosecutors.

Price Waterhouse also estimates that Capizzi spent $2.4 million as of January on bankruptcy-related investigations and committed 4.6% of his criminal division staff.

Capizzi said Monday that total investigation costs have since risen to about $3 million, which will be covered by Merrill Lynch’s record $30 million settlement to avoid criminal or civil charges related to the county bankruptcy.

The Board of Supervisors will now have to decide whether to proceed with a second audit of the district attorney’s office that would delve more deeply into the way resources are allocated.

The board approved such an audit late last year and then postponed it until the Price Waterhouse study was completed.

*

Board of Supervisors Chairman William G. Steiner said Monday that he was studying the grand jury report. He said he still supported a second review by the county’s internal audits office.

“I still believe we should direct our own independent review,” Steiner said. “I believe it could be done in more depth and answer some of the questions that Price Waterhouse could not.”

The firm said Capizzi’s office has one of the highest conviction rates in the state: about 95% in felony cases, and about 80% in misdemeanor cases. However, the audit made no attempt to ascertain how often prosecutors reduce felonies to misdemeanors, something that happens frequently in Orange County.

“The D.A. can . . . downgrade a felony to a misdemeanor if he or she deems that the available evidence and facts would not support a felony filing,” the report said. “Judgment calls are made every day . . . in this way. Generally, the more thorough and accurate the police report, the greater the likelihood the filing will be made as requested.” Among the counties surveyed by Price Waterhouse, Orange County had the highest filing-per-attorney rate in the state: 400-to-1.

The $86,000 grand jury study focused its findings on relatively narrow areas of district attorney operations and made few far-reaching recommendations.

For example, it questioned the wisdom of issuing citations to first-time graffiti taggers rather then charging them with misdemeanors.

“While these crimes may seem innocuous enough, the presence of this type of crime does have an impact on the public’s perspective of the presence of more serious crimes,” the report stated. “Many larger cities such as New York City have taken aggressive suppression stances on these types of ‘quality of life’ crimes with positive results.”

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Capizzi defended the citation system, which he said forces wrongdoers to pay fines while not incurring the expense of a costly trial. Because of jail overcrowding, it is unlikely that most minor misdemeanor cases would result in anything more than a fine anyway, he noted.

Price Waterhouse also said the district attorney’s office should minimize late filings of misdemeanor cases, which has been a problem at some municipal courts, including North Court in Fullerton.

“Many defendants have transient lifestyles, moving from residence to residence every few months,” the report stated. “When appearance letters are sent weeks after the original action, many are delivered to the wrong address.”

As a result, Price Waterhouse said, defendants don’t know they face the charges until they deal with police on another matter--perhaps months or years later. When that occurs, many defendants also face failure to appear charges and must be taken into custody at already overcrowded jails.

Capizzi said he remains committed to his office’s ban on plea bargaining despite questions raised by the grand jury. Plea bargains still occur in Orange County, but they are arranged largely between the judge and defense attorney with the prosecutor usually seeking the maximum prison sentences.

Price Waterhouse said that Orange County prosecutors take 40% less time to complete criminal cases than the national average. But the office takes double the average time for homicide cases.

The report attributed the lengthy homicide cases to the rising number of death penalty trials, which rose from three in 1992 to 16 last year. Price Waterhouse said the national average included states without the death penalty.