Steve Anderson, then a deputy chief, sent Judge Moreland an eight-page memo in 2005 that chronicled several issues he had with the prosecution of domestic violence cases in Night Court. In the memo, Anderson mentions a “troublesome and outrageous” case in which a Night Court commissioner dismissed a domestic assault charge because the suspect seemed like a “nice person.”
Original Title
2005 memo from Metro police deputy chief to Judge Moreland
Steve Anderson, then a deputy chief, sent Judge Moreland an eight-page memo in 2005 that chronicled several issues he had with the prosecution of domestic violence cases in Night Court. In the memo, Anderson mentions a “troublesome and outrageous” case in which a Night Court commissioner dismissed a domestic assault charge because the suspect seemed like a “nice person.”
Steve Anderson, then a deputy chief, sent Judge Moreland an eight-page memo in 2005 that chronicled several issues he had with the prosecution of domestic violence cases in Night Court. In the memo, Anderson mentions a “troublesome and outrageous” case in which a Night Court commissioner dismissed a domestic assault charge because the suspect seemed like a “nice person.”
I have recently identified several troubling issues concerning the warrant issuance process that I believe you will appreciate being brought to your attention. There are unnecessary and unacceptable delays in the process as well as improper practices concerning the commissioners decisions as to whether a warrant should be issued. I am forwarding this information to you because it is my understanding that the employees involved in this process are supervised by your office. It is also my belief you will agree that these are issues we should work together to resolve.
In the early morning hours of Saturday, March 26, 2005, I was riding with an officer, patrolling the downtown area. We responded to a fight call at First Avenue North and Church Street. A male and a female from Ohio had been involved in a physical altercation. The female had sustained visible injuries to her face. A crowd had gathered, some witnessing the event and some gathering in the aftermath. Two witnesses stepped forward, supplied their names and other identifying information, and stated they would be willing to testify as to the events. The male subject was taken into custody for transportation to booking.
At that time, the officer I was riding with suggested that I might want to ride with one of the other officers. He stated that, depending on the time the commissioner elected to take a lunch break, we would likely be in the booking process for an extended period of time. Over the past few weeks, I had been informed that the booking process was being unnecessarily delayed by the commissioners. Frankly, I assumed that some of the accounts were being overstated. Judge Moreland Judicial Commissioners March 31, 2005, page 2
With that in mind, I decided to see, firsthand, how the booking process was operating. What I found was that the accounts of unnecessary delays in the booking process were actually being understated. If the inefficiencies I observed on this one night occur even infrequently, we are wasting thousands of dollars of taxpayer money and depriving the public of the protection for which it pays. From the accounts I am hearing, I suspect these delays occur on a regular basis.
We arrived at the booking room and the arresting officer prepared all the necessary documentation for presentation to the commissioner. We then proceeded to the night court area. I was certainly not prepared for the long line. There were nine (9) officers standing in line. The officer at the front of the line told me that he had been waiting for an hour. I made a general inquiry to see if this was a frequent occurrence. The officers collectively told me that delays are normal but that the particular commissioner on duty unnecessarily delays the process. I was told that if spectators were present we could expect the delay to be even longer. I was puzzled about this comment but I later found it to be warranted.
I have also received numerous and independent reports from officers across the department about this commissioner using hand puppets as a form of communication while in the process of issuing a warrant. This did not occur in my presence so I cannot confirm this practice. I can attest to the following.
I watched the commissioner through the small window in the door for approximately 30 minutes. He would expend extended periods of time staring at the computer screen and commenting. Initially, I attributed this to him being thorough and insuring that the affidavits contained all the necessary information. I assumed that he was conferring with the arresting officers about the case at hand. However, on closer inspection, I found that he was not engaging the arresting officers in this dialog. They were merely standing by, silently, waiting to be dismissed. I later stepped into the room where the officers make their presentation. As predicted by the officers waiting in line, there was an audience of 15 to 20 persons. And, as predicted, it appeared that most of the commissioners comments were for the benefit of the audience.
As an example, one defendant, charged with a driving offense, offered in her commentary that she worked for the law firm of ___________ and __________. The commissioner then started an inquiry as to what employees she knew there. This lead to an inquiry about one particular individual, where he was now employed, how he was doing, and then a long dialogue about the qualifications of this individual. This somehow led to a discussion about the time when the commissioner was a college teacher. Later, the commissioner inquired about Mr. ______________ of the law firm of ____________ and _____________. He asked the defendant to give __________ his regards and appeared to make Judge Moreland Judicial Commissioners March 31, 2005, page 3 great emphasis, for the benefit of the spectators, that he and Mr. __________ were on a first name basis.
All of this conversation was completely unnecessary, inappropriate and a complete waste of time for everyone standing in line.
Later, the arresting officer on the domestic case presented the defendant to the commissioner and gave testimony about the altercation. Included in this testimony were the accounts given to him by the witnesses, that the witnesses had made themselves available for testimony and that the female victim had visible injuries to her face.
The commissioner then engaged the defendant in conversation about his occupation and about his relationship with the female. After defendant told him that he and this female had lived together for three years and that they generally got along, the commissioner abruptly dismissed the charges. His statement to the defendant was you seem like a nice young man, I want to give you a break. Im going to let you go.
There was absolutely no discussion as to any inadequacy in the probable cause presented or that there were any defects in the presentation or in the affidavit. The arresting officer seemed quite stunned that a warrant would be refused just after a serious domestic violence assault had been committed in the public view on a crowded downtown street. I will have to admit that this was so unbelievable that it took me a moment to realize what had just occurred. After this moment of silence by all, I stepped forward and asked the commissioner whether he was dismissing the charges or whether there was not adequate probable cause. At this point the commissioner seemed to be at a loss for words. However, he very quickly recovered and, in a very pompous manner, instructed the officer to mark it as no probable cause. The commissioner then, very loudly, proclaimed his name to the officer, as if to issue a challenge to anyone that might question his authority. The message being conveyed by the commissioner was that he was in charge and that no one had a right to question his decision as to whether a warrant should be issued.
There was no further explanation nor were there any comments as to what might be lacking in the probable cause. He did tell the officer, you did the right thing in arresting him.
I felt that it would have been pointless to have any further discussion and left the area.
It is absolutely incredible, considering the testimony presented, that a commissioner would refuse to issue a warrant immediately after a volatile domestic assault had just occurred. As you are aware, domestic assaults are an Judge Moreland Judicial Commissioners March 31, 2005, page 4 exception to the rule that a misdemeanor must occur in the presence of an officer in order to make a warrantless arrest (Tennessee Code Annotated sections 40-7- 103 and 36-3-619.). 1 Further, hearsay testimony is admissible when presenting probable cause to obtain an arrest warrant (Rule 4(b), Tennessee Rules of Criminal Procedure.). 2 In this case, the witnesses met both requirements to make their hearsay testimony admissible. Their basis of knowledge was that they were there and actually witnessed the altercation in progress. The credibility of the witnesses was satisfied in that they are deemed good citizens who stepped forward, identified themselves, and gave their account in their interest in seeing that the assault was brought before the criminal justice system.
In addition, the officer gave a firsthand account about the injuries sustained by the domestic victim. There was absolutely no basis for the commissioner to make a determination that no probable cause existed.
As you are aware, over the last few years the criminal justice system has made a concerted effort to address the serious issue of domestic violence. The legislature has changed the arrest statutes to authorize arrests when the domestic assault is not committed in the presence of the officer and to mandate that the arrest be made. The Office of the District Attorney has assigned special prosecutors to these cases. The courts have given great emphasis to these cases, including the creation of special dockets for domestic related criminal offenses. Likewise, police departments across the country have given great emphasis to this problem. Because of this collective effort, lives that may have been lost to domestic homicides have been saved and domestic violence in general has declined. However, none of this can happen if a commissioner decides that a warrant will not be issued simply because he concludes that the defendant seems like a nice young man.
I submit that a commissioner does not have the authority to summarily dismiss a criminal prosecution based on some five minute assessment of whether someone is a nice person or not. Rule 4, of the Tennessee Rules of Criminal Procedure, 3 states that if there is probable cause to believe that an offense has been committed and that the defendant committed it, a warrant shall be issued. Therefore, based on the facts before the commissioner, it was not within his authority to dismiss this case. I suspect the commissioner knows this also and that is the reason that he elected to not say that he was dismissing the case but told the officer to mark it insufficient probable cause. It is interesting to note that he did not say there was not sufficient probable cause and state what the deficiencies were. Instead, he loudly ordered the officer to mark it insufficient probable cause.
It is also interesting to note that the commissioner told the officer you did the right thing in arresting him. If the officer, in the commissioners opinion, did the right thing, then it would necessarily have to be the commissioners opinion that Judge Moreland Judicial Commissioners March 31, 2005, page 5 the officer had sufficient probable cause to make the arrest or, otherwise, the arrest would not have been lawful and would not have been the right thing for the officer to do. This further supports the conclusion that the commissioner merely dismissed the case based on a whim and that he did not refuse to issue a warrant based on insufficient probable cause.
Although this particular case is troublesome and outrageous, I am more concerned that this may be occurring on a regular basis and was not a one time occurrence. It is extremely unlikely that the one time the commissioner decided to dismiss a domestic assault case is the one time in many years that I happen to be standing within earshot. As a precaution, I have instructed the commander of our Domestic Violence Division, Captain Rita Baker, to review this matter for a determination as to whether the case should be presented to the grand jury. Also, Captain Baker will be making an inquiry within the Police Department and to any citizen organizations that may monitor this process to determine whether there have been any similar occurrences that need to be reviewed and addressed by all concerned parties.
Also worthy of discussion are the breaks the commissioners take. At approximately 5:30 a.m. I responded to a call on Second Avenue. I identified one of the responding officers as an officer I earlier observed in line waiting to see the commissioner. I asked him what time he got out of booking. He stated that he had just left. He told me that he had worked his way up to the front of the line when the commissioner left his post. He stated that the commissioner was absent from 4:00 a.m. to 5:00 a.m. Necessarily, this officer had to wait until his return. He stated that there were nine (9) officers waiting along with him. Some of them had ended their regular shift at 2:30 am. This means that from 2:30 am until they were able to complete the process, they would be on overtime pay.
Obviously, having officers waiting unnecessarily not only creates an enormous and unnecessary expense to the taxpayers, it also deprives the public of their services while they are being held captive in the booking area.
I realize that we are a government and not a private business. But, I have to take the position that we have a responsibility to make whatever changes may be necessary to make this a more expedient and efficient process. We are not serving the public well when we have officers standing in line to complete an arrest process that may have occurred hours earlier. These officers need to be on the streets protecting the pubic. If we have several officers standing in line unnecessarily, not only is the public not being served by receiving the protection for which they pay, the public is paying several hundred dollars an hour to have the officers stand in line unnecessarily.
Interestingly, these problems were identified by the Matrix Consulting Group in March of 2004 in their findings and recommendations issued to the Metropolitan Judge Moreland Judicial Commissioners March 31, 2005, page 6 Government. 4 The complete text of this study, commissioned by the Internal Audit Section of the Metropolitan Government Department of Finance, is available on the Metropolitan Government web site. Some of the findings and recommendations of the Matrix Group are as follows:
Executive Summary, page 2 Over the course of the analysis, the Matrix Consulting Group identified many possible areas of improvement for booking operations, achievable through the restructuring of the booking process and the adaptation of several enhancements to policies, procedures and technology. The Matrix Consulting Group recommends that the County shift to allowing Clerks of the Court to swear Officers in regarding the veracity of their arrest reports (to replace their personal appearance before the magistrate). Other recommendations have been included and should be implemented regardless of which alternative Metro Nashville selects. The project teams primary objective was to identify recommendations that reduce the amount of time police officers spend in the booking process while maintaining safety standards for officers, deputies and detainees as cost effectively as possible.
Executive Summary, page 4 Commissioners should either take their lunch break when there is a period of low activity or they should take a very short lunch break, (10-15 minutes) to minimize the impact that they are having on the overall booking process.
Recommendation: page 6 Commissioner lunch breaks should be taken while working. Commissioners are exempt employees and their absence during lunch breaks creates potentially significant delays in returning police officers to the street by as much as one and a half hours. Currently, Commissioners are allowed to leave the bench for their meal break. This often results in significant delays in the processing of incoming arrestees. The project team understands that the Court is already considering several options in an effort to address these issues.
Finding: page 21 Both Metro Nashville and Shelby County commissioners are available 24/7, however the judicial commissioners in Shelby County work during their lunch hour if an officer brings in a arrestee.
Finding: page 32 Commissioners can affect the booking process by as much as one and a half hours due to the following factors: Commissioners receive one hour for lunch. Therefore if officers bring in a prisoner immediately after the commissioner leaves they are required to wait with their prisoner until after the commissioner returns. Only one commissioner is on duty for each of the Judge Moreland Judicial Commissioners March 31, 2005, page 7 eight-hour periods. If a large arrest occurs, there may be as many as 30 prisoners and 15 or more officers waiting for warrant reading and bond setting before the commissioner.
Recommendation: page 34 The Matrix Consulting Group recommends that officers be allowed to swear before the Clerk of the Court as to the accuracy and validity of their arrest report.
Recommendation: page 39 Commissioner lunch break should be taken while working. Commissioners are exempt employees and their absence during lunch breaks creates delays in returning police officers to the street by as much as one and a half hours. The project team understands the Court is already considering this option.
First, this independent study, conducted by a nationally recognized consulting company, states that commissioners are unnecessary to the process. If the commissioners are unnecessary to the process, the elimination of these positions could be a huge savings to the Metropolitan Government in at least two (2) ways. One, there are five (5) commissioners paid a minimum of $66,387 to a maximum of $98,527 each. 5 This total salary and benefit package could amount to as much as one half million dollars a year.
Second, even if it is decided that, although unnecessary, the commissioners should remain a part of the process, adopting even one of the Matrix recommendations, the elimination of the lunch breaks, would relieve a major portion of the bottleneck in the process created by the commissioners taking one hour breaks while leaving numerous officers waiting in line. This, alone, would be a huge dollar savings to the Metropolitan Government and greatly increase the efficiency of the booking process.
If the commissioners are to be retained, the existing procedures should be adjusted so that they are not an impediment to the process. Because of the procedures presently in place, the commissioner is an essential component in booking a prisoner. If the commissioner abandons his post, all other employees involved (Police Officers, Sheriffs Deputies and Deputy Criminal Court Clerks) must stand idly by and await the return of the commissioner. Because of this, there can be absolutely no justification for a commissioner not being on post for the entire shift.
I am aware that you and your fellow judges have been searching for ways to make the courts more accessible to the public and to make each of the processes you are involved in more efficient. To assist you in that endeavor, I have asked each of our precinct commanders to gather information concerning Judge Moreland Judicial Commissioners March 31, 2005, page 8 specific times their officers have been unnecessarily delayed in the booking process.
I look forward to working with you to resolve these issues.
1 Tennessee Code Annotated 40-7-103. Grounds for arrest by officer without warrant.
(a) An officer may, without a warrant, arrest a person: (6) Pursuant to section 36-3-619
Tennessee Code Annotated 36-3-619 Officer response -- Primary aggressor Factors Reports Notice to victim of legal rights.
(a) If a law enforcement officer has probable cause to believe that a person has committed a crime involving domestic abuse, whether the crime is a misdemeanor or felony, or was committed within or without the presence of the officer, the preferred response of the officer is arrest.
2 Tennessee Rules of Criminal Procedure, Rule 4. Arrest Warrant or Summons upon Complaint.
(b) The finding of probable cause shall be based upon evidence, which may be hearsay in whole or in part provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.
3 Tennessee Rules of Criminal Procedure, Rule 4. Arrest Warrant or Summons upon Complaint.
(a) Issuance. If it appears from the affidavit of complaint or supporting affidavits file with the affidavit of complaint that there is probable cause to believe that an offense has been committed and that the defendant committed it, a warrant for the arrest of the defendant shall be issued by a magistrate or clerk to any officer authorized by law to execute it . . . .
4 Metro Nashville Davidson County, Tennessee Matrix Consulting Group Study of the Booking Process February 27, 2004
5 (Metropolitan Government Pay Plan, effective 7/1/2003, classification #06559).