So with a very recent trial that is finally kicking off, I thought I would launch a discussion of a topic that was hotly discussed around the time of the incident, seems to no longer be discussed. That is: Cruz waivers. They, of course, have nothing to do with one of my favorite cities in all of California, Santa Cruz, but they have everything to do with protection and accurate decision-making, and the importance of having policies and procedures in place.

The term “Cruz waivers” is a generic term that deals with a post guilty-plea period but pre-sentence release from custody. When individuals are charged with a crime, they are in most circumstances constitutionally eligible to bail and, under certain circumstances, released on their own recognizance, which is nothing more than the defendant signing a promise to appear. (The latter is rare if the crime they are charged with involves any violence, or the defendant has any violence or failure to appear in their history.) The bail/own-recognizance decision comes from a judge, but the prosecuting attorney gets to provide critical input. However, once a person has plead guilty, they are presumed guilty and are not generally entitled to pre-sentence release, although the custom and practice of most courts is to continue the status that existed prior to a plea. Sentencing must occur in felonies within 20 days.

One of the things that surprised me back in 2012 around the discussion of Cruz waivers, was how the use of that particular case — yes, Virginia, there really is a person named Cruz — was occurring in Humboldt, and how an important analysis was really missing. In this piece, I will attempt to lay it out.

The facts of the Cruz case were as follows: He had plead guilty pursuant to a plea bargain. At the time he was out of custody admitted to bail. (That becomes very important later on in this analysis of why Humboldt is getting this totally wrong). His plea bargain avoided his maximum exposure, but Mr. Cruz failed to return for sentencing. Later on he was caught. The Judge said that he was not bound by the earlier plea bargain because he failed to return for sentencing. Cruz tried to withdraw his plea, for failing to get his plea bargain. That was denied. The Court of Appeals agreed with the Judge, but the California Supreme Court thought otherwise. Hence the term waiver. If a defendant fails to return for sentencing then all he has to do is assert his rights under that Supreme Court case, and he still gets his plea bargain or he can withdraw his plea, if the Judge refuses to follow that plea. That is why some Defendants are asked to waive their rights under this important precedent.

I know some of this legal mumbo-jumbo, but it is important to explain and show how at least in 2012, and when the DAs office was run by Paul Gallegos, this process was being abused, because there was no policy or guidance in place in the office. Individual decisions by individual prosecutors was allowed, thus there was no uniformity, across the board. Later on they were temporarily banned after the aforementioned case now heading to trial came to the light of the public.

The first thing that you notice is how the previous pre-trial release decision directly intersects with this guilty/plea request for a Cruz Waiver, which is being generated by a Defendant. In Humboldt indeed it was somewhat routine for a Defendant to request their post-guilty plea release from jail in advance of their sentencing as a part of the plea negotiation process. In fact, many noted back then that this will make it harder to plea bargain cases if this carrot was removed. Most notably that process was an expansive reading of the facts of the Cruz case. It also involved the setting aside of a Judge’s decision to NOT release someone earlier on in the process. Now some Judges in Humboldt took the position that Cruz Waivers were merely private agreements between the prosecuting attorney and the defendant. However you have to ask yourself, if it includes setting aside a previous decision by a Judge to NOT release someone, then it is clearly more than that. The Judge can, should and must weigh in on this important issue. In fact under general principles of plea bargaining any waiver of a Defendant’s rights must be knowing, voluntary and intelligent. A Judge must make specific findings to that effect or the pleas are deemed to be invalid. The irony is that the Judge primarily made their decision to keep the person in previously from the prosecutor’s position that the Defendant should stay in, who was now agreeing that they should be released.

Some Defendant’s guilty pleas involved probation and understandings that no more jail would be requested at time of sentencing. Other pleas involve a Defendant whose plea involved them going to prison. Sometimes for a prolonged period. You can tell between the two, it is far more dangerous to let someone out who knows they are going to prison prior to sentencing, as opposed to probation and no more jail, but in theory something horrific could happen with either.

When pleas are entered in that situation there is no change in circumstances that favors the Defendant. In fact guilt is no longer at issue, but it was routine if the prosecutor blessed off on this arrangement, then the Judge always followed suit. This despite the fact that the release or non-release of a Defendant is ALWAYS the decision of the Judge, unless for some reason charges were just dropped by the prosecutor. Is the Judge’s mere acquiescence the same thing as their affirmative act in allowing the person released? I don’t think so.

The reality is that these types of arrangements were routine because that “proverbial key to the jail cell” that the prosecutor wrongly held in their hand, and the ability to offer a taste of short freedom was a powerful inducement to enter into plea bargains. Many defendants would take the bait. Some of those defendants would not return. Of course extremely rare were those cases where a Defendant was ALLEGED to have committed a crime during their release.

Is this an appropriate way to resolve criminal cases, where unwarranted power (not guided by policies and procedures) was used to get a case to resolve? I would say no. Obviously the Courts of Humboldt are very busy. In fact they are short two Judges. One time, on the eve of case resolutions, a Judge remarked “What is it going to take to move this car off the lot?” We all laughed, but the correct impression that there is a little bit of used car tactics to resolve cases is actually abhorrent in what are life-changing decisions for many people. Most are not resolved this way, but some are, and any is too much in my opinion.

All one has to do is check out Lost Coat Outpost regarding releases from custody and you will realize there is a sizeable built-up amount of anger among the populace on this issue. Not exactly the same issue, but recently, two individuals who were arrested for having a pound of heroin were just released by the jail. They apparently met some rubric that entitled them to a release, but in that case the Court and the DA never got to weigh in. Later apparently there was some finger-pointing that said if the booking agency, to wit EPD, had asked they be held, they would have been. They were required to appear. It is unknown if they failed to appear. They had little connection to this community, and the conventional wisdom is they might high-tail it out of town, since they got this gift of a release that depending upon who you talk to should or should not have happened.

Related to this issue, is the general consensus that there is too much of a revolving door within the Humboldt County criminal justice system. Changes in sentencing and custodial placements will continue to keep that door local, there is no doubt about that, as I have written on those issues previously. I believe, but I have not seen, that the new DA administration has put an end to the old Gallegos policy of misinterpreting the Cruz case, and are no longer allowing these types of deals to go forward. Certainly one case became an eye-opener for the entire criminal justice system. Even the temporary Gallegos ban was later lifted and these deals were going through, so it is hoped that reform on this critical issue has been finally put forth – only this time in cement, and not as a temporary fix because all eyes were on the office.