Charges vanish when officers miss court hearings

By Jason Riley and R.G. Dunlop
The (Louisville, Ky.) Courier-Journal

It had been an open secret for years in Jefferson County's courts — Kentucky's largest court system — that many defendants in criminal and traffic cases were able to get their charges dismissed simply because the arresting officer didn't show up for hearings.

But when The Courier-Journal decided to investigate in 2008, the newspaper immediately ran into a roadblock: No one in Jefferson County, including police, prosecutors or the state's Administrative Office of the Courts (which manages Kentucky's judicial system) tracked why cases were dismissed.

Working with lists provided by the AOC of all dismissed criminal cases for 2007, the newspaper spent weeks reviewing them at computer terminals in the Hall of Justice in downtown Louisville, trying to find details as to why they had been dismissed.

The process was made more difficult because in many instances, there was nothing in the computer or in court files specifying the dismissal reason. In those instances, reporters sometimes had to listen to audio tapes or watch video for clues about what had happened in the courtroom.

But many other cases noted that the charges were dismissed because of "PONP" — Police Officer Not Present. Due to the large number of these cases, reporters decided to focus only on felonies, the most serious offenses.

During the next few months, the newspaper created a database of 750 felony cases that court records specifically noted had been dismissed due to absent officers. The database included several fields of basic information: the names of the defense attorney, prosecutor, judge, arresting officer, the division the officer served and the date dismissed.

Reporters then pulled each of the cases from the courts' archives, to make sure the case was actually dismissed because an officer wasn't available and to find additional information for the database. Was a police officer properly subpoenaed? Did the officer sign the subpoena to confirm that he or she had received it? Did the officer file a motion to continue the case because he or she couldn't be present on a specific date? For drug cases, was there a positive lab report from the Kentucky Crime Lab (which suggested stronger evidence for police and prosecutors, and thus a case worth pursuing)?

At the same time, reporters were interviewing prosecutors, police, victims, judges and others in the court system to determine what procedures — if any — were in place to ensure that police showed up for court, whether anything happened if they failed to appear and to find out why officers didn't show up.

Reporters made more than a dozen open-records request seeking internal correspondence concerning officers' failure to appear, disciplinary records on police officers, and police and court procedures and policies. They also looked for similar information in other cities with similar-sized police forces, including Cincinnati, Indianapolis and Nashville.

In November 2008, the newspaper turned over to police and prosecutors a list of 630 felony cases — more than 100 had been excluded for various reasons, including incomplete information — and asked for an explanation of why the cases were dismissed. The responses were slow, incomplete and, initially, defensive. Officials said they didn't track dismissed cases and didn't have time to examine the newspaper's list. Numerous meetings were held with top officials of the police department and the Jefferson County attorney's office, which was responsible for prosecuting the cases in District Court.

When three months passed and neither agency had provided a definitive accounting of the 630 cases, the newspaper sent a lengthy, detailed letter to Police Chief Robert White questioning the department's failure to respond. Almost immediately, White ordered a review of the cases that — five months later — is still in progress.

When it became clear that the review would not be completed any time soon, the newspaper decided to publish its findings without waiting for police.

The result was a three-day series, "Officer Absent: Case Dismissed," that detailed severe breakdowns in the Jefferson County courts that had been allowed to exist for years despite warnings from officials inside and out of the courthouse. Defendants had, for years, been able to walk out of court on charges of trafficking in drugs, assault, theft, DUI and even robbery without so much as a hearing on the evidence. The series is online at http://www.courier-journal.com/apps/pbcs.dll/section?Category=EXTRAS04&template=fullpage.

Among the newspaper's findings: At least 300 of the approximately 1,200 Louisville Metro Police Department officers had at least one felony case dismissed for failure to appear in court, although they are required by law and department policy to attend court hearings after receiving subpoenas. But only one officer was disciplined for missing court in 2007, and just three last year.

By contrast, police departments in some cities of comparable size had taken a much more aggressive approach. Nashville, for example, handed down 172 disciplinary actions against officers in the past two years for missing court, including 124 suspensions.

Despite being urged to do so in two audits since 2002, Louisville police did not track or analyze cases that were dismissed because officers failed to appear in court. As a result, neither they nor prosecutors knew the number of such cases, why the officers failed to appear, or whether there were chronically absent officers.

The system to subpoena officers was archaic and ineffective — and in some instances, flaws resulted in officers missing court. But efforts to change that system have been half-hearted and, not surprisingly, unsuccessful.

Some officers had several felony cases dismissed in 2007 for failing to appear, and nine officers had between eight and 13 cases dismissed for that reason. None had been punished — or even investigated — by the department.

The results from the series were immediate.

Police officers began flocking to court, in such numbers that even top police officials joked about the congestion. Chief White began working with prosecutors and others to hold officers more accountable for missed court appearances. Prosecutors now notify police officials when an officer is absent. And a police court-liaison officer has been assigned to track court attendance and dismissed felony cases by conducting a daily audit, and to report policy violations. Supervisors are supposed to review those violations regularly, and report suspicious ones for investigation and possible discipline.

Metro Police also unveiled detailed new policies to help ensure that subpoenaed officers appear in court, and that those who don't are held accountable. And police can no longer dismiss cases without a supervisor's consent.

Further, White and Jefferson County Attorney Michael O'Connell ended a longstanding practice of routinely, and unnecessarily, subpoenaing police for thousands of pretrial hearings in traffic and misdemeanor cases. The decision is expected to cut subpoenas by at least 30 percent and save hundreds of thousands of tax dollars each year in police court pay.

And police continue to investigate hundreds of missed court appearances by officers for potential disciplinary action.

Metro Government recently budgeted $400,000 for an electronic subpoena system, replacing the cumbersome paper process that currently delivers more than 100,000 documents to officers each year. Bids from potential vendors to implement such a system are expected to be solicited later this year.

Jason Riley is a court reporter for the Courier-Journal in Louisville, Ky. He can be reached at jasriley@louisvil.gannett.com. R.G. Dunlop is an investigative reporter for the Courier-Journal in Louisville, Ky. He can be reached at rdunlop@courier-journal.com