2 Investigates: Questions arise about defendant rights in community court

- A restorative justice program with roots in San Francisco is gaining momentum in Contra Costa County as a way to help first time offenders and relieve pressure on the overburdened court system. But the program is also facing new questions about whether it's doing enough to preserve the due process rights of offenders.

A "Win, Win"?

The program, known in Contra Costa County as Community Court, is currently used in the cities of Walnut Creek, Concord, Pittsburg and San Ramon. First time offenders, arrested for low level crimes, are given a chance to pay a fine or do community service in exchange for not having their cases sent to the District Attorney's Office, which could choose to file formal criminal charges.

"If they succeed in either paying a fine, completing community service or participating in diversion classes, then their case is set aside," said Sgt. Russ Norris with the Concord Police Department.  "It's going wonderfully. It's actually exceeded our expectations."

Norris says Concord has offered Community Court in about 700 cases and half of those offenders have chosen to participate.

"They're reminded several times.  At every step of the way, they're told, this is voluntary," said Norris.

Critics Warn about Confusion

2 Investigates was allowed to observe the Community Court hearing for one young woman who had recently been arrested for shoplifting.  

During the brief hearing inside a conference room at the police department, a hearing officer ordered the woman to pay $700 to the city, in addition to a $100 administrative fee to Community Court Services, a private company which runs the program. 

In exchange for her cooperation, the woman would avoid jail time or the possibility of a criminal conviction.

Outside the conference room, KTVU's Eric Rasmussen asked the woman if she understood the process was voluntary. 

"Correct," she replied, but when asked why she chose to participate, the woman said "Well, I didn't have a choice.  They said, if not, they would probably do other actions."

Confused responses from participants such as that one give Contra Costa County Public Defender Robin Lipetzky cause for concern.

"You're dealing with people who are not sophisticated about the court system," said Lipetzky.  "When you have a system where they're getting notified by a police agency that, 'hey, if you want to pay this fine, show up on this date and then you won't be prosecuted?' I think that's somewhat misleading."

Misleading, because Lipetzky says prosecutors are unlikely to ever file charges on some of the low level cases that end up in Community Court.

"What you have going here in these cities, it seems to me, is really a money making scheme," said Lipetzky.

Grand Jury weighs in, Antioch opts out

The Contra Costa County Grand Jury recently reviewed Community Courts and recommended other cities onsider adopting the program. The Grand Jury's report found the program helps offenders avoid having a criminal record and the court system benefits from a reduction in its misdemeanor case load.

READ: Contra Costa Co. Grand Jury Report

But not everyone's on board.

Antioch Police sent a member of its department to observe a Community Court hearing in another city, who came back with concerns about how the process is handled. In the City's response to the Grand Jury, it noted "there was no court reporter or other recording mechanism," and in one case involving a Spanish speaking offender, translation was provided by someone "who was not a court recognized interpreter."

READ: Antioch response letter to county’s Grand Jury Report

"There were times I saw she didn't even know the right words to say," said Capt. Tammany Brooks who observed the hearing.  "(The interpreter) couldn't even formulate the right phrase to explain exactly what was being said."

After considering those findings, the Antioch City Council voted to hold off on joining the Community Court program.

"I'm not saying it's a bad thing," said Antioch Police Chief Allan Cantando.  "What I'm saying is, in order for us to do it we have to have... safeguards in place to make sure there's due process."

Gaining Support

Despite the concerns raised by the City of Antioch and the Public Defender, support for Community Court seems to be growing.  Several other Contra Costa County cities contacted by 2 Investigates say they're seriously considering adopting the program.

Attorney Michael Hinckley runs Community Court Services.  He says the program addresses underlying problems affecting first time offenders and keeps people out of the criminal justice system.

As for the recent criticism of the program Hinckley insists "there is no due process concern.”

“And to the extent someone would be concerned about due process, it's addressed," he said.

Hinckley showed KTVU the participation agreement given to all offenders which repeatedly references the fact that the process is voluntary and private.

"There's no court reporter because it's not court.  It's not a legal proceeding," said Hinckley.

In the case of the Spanish speaking offender observed by Antioch Police, Hinckley concedes the interpreter was not court certified, but insists the participant received reliable translation.

"That interpreter is a professional, qualified, bilingual interpreter," said Hinckley. "Other than the (Antioch) Captain, we haven't had any complaints about their accuracy."

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