Case Dismissed

Accused felons often are released when officers fail to testify

It is not a new problem, but it is a serious one. And Fulton County Magistrate Judge Richard Hicks says he's tired of it.

Every month, Hicks sends dozens of accused felons back onto the streets. He does so because Atlanta police officers don't always show up for preliminary hearings.

Hicks estimates that in April alone, he presided over 1,125 preliminary hearings, 122 of which required an arresting officer to testify. He says that in two-thirds of those cases, the officers didn't show.

Although the percentage of Fulton felony charges dismissed at preliminary hearings differs depending on whom you ask, most courthouse officials cite a dismissal rate of at least 50 percent. And Fulton County felony charges are dismissed with far more frequency than in neighboring counties. Hicks says his court dismisses felony accusations at preliminary hearings 67 percent of the time, mostly due to officers failing to appear. According to a recent article in the

Gwinnett Daily Post, the dismissal rate for felonies at Fulton preliminary hearings is 58 percent, compared to 7 percent in Clayton and less than 1 percent in Gwinnett and Cobb. DeKalb County, which doesn't calculate dismissal rates at preliminary hearings, reports fewer instances of officer no-shows during all of last year than Hicks counted in one month in Fulton County.

On a single afternoon in Hicks' courtroom last week, there were seven preliminary hearings that required police testimony - and officers failed to show for all seven cases. Three of the hearings were rescheduled, two of the suspects were offered bonds, and two cases were dismissed.

Hicks says he used to contact the Atlanta Police Department every time an officer would skip a preliminary hearing, but he stopped when he didn't hear back. He says nothing he's tried has succeeded in getting officers to attend more preliminary hearings.

"I've been in these buildings since 1970," Hicks says of the Fulton County Courthouse. "I was a [Fulton Assistant] DA for 22 years. When I got here, it was a problem getting officers to come to court, and it is still a problem. When I was a DA, I felt like if I could get the officer to court, I was 90 percent of the way there in getting a conviction."

In Fulton County, Hicks presides over the vast majority of preliminary hearings, which are held to determine if there is probable cause to justify indicting the suspect and sending him or her to trial. The testimony of the arresting officers is often crucial to establishing probable cause. Absent officer testimony, Hicks must decide between three options: reschedule the hearing to give the cop another chance to show up, offer the suspect bond, or dismiss the case.

"I can't keep rescheduling cases, because if I do our calendar will build up to the point where we will be overwhelmed," Hicks says.

That leaves bond or dismissal as the remaining options, and Hicks often chooses dismissal.

Dismissing a charge at a preliminary hearing does not mean the case necessarily disappears. The district attorney could still bring the case to trial, and Fulton District Attorney Paul Howard claims most of the suspects in cases dismissed at preliminary hearings are eventually indicted; however, that scenario calls for the suspect to be rearrested and face yet another preliminary hearing - a process ultimately more time-consuming for law enforcement. What's more, the practice allows for an accused felon to be put back on the streets and commit more crimes.

Howard says the high dismissal rate in Fulton County might not be the miscarriage of justice that it appears on the surface. He claims that 93 percent of cases dismissed at preliminary hearings are eventually indicted.

But Hicks strongly disagrees. He says the majority of cases that he dismisses due to officer no-shows are drug possession cases and that most of them, once dismissed, never come back to him. He also says that if officers were to show up more often, suspects would be indicted more quickly.

Fulton County Sheriff's Sgt. Charles Rambo, who heads the Local 453 of the International Brotherhood of Police, says officers' time is at a premium and that officers often choose other responsibilities over attending preliminary hearings. Rambo also says officers are not always compensated for overtime hours that they spend in the courtroom.

"If I'm sitting in court for four hours, my department still might say that they're only going to pay me for two hours," Rambo says. "And sometimes officers complain that they will be scheduled to appear in court on one of their off days."

According to Atlanta Police Department spokesperson John Quigley, there also might be a problem delivering subpoenas to officers on time.

"If we didn't receive those subpoenas," Quigley says, "then we can't hold our guys accountable."

But Fulton Deputy District Attorney Rebecca Keel says she sends both electronic and paper subpoenas to appointed officials at the Atlanta Police Department and calls the officers to inform them of the subpoenas.

Howard says the problem might stem from the hectic and unpredictable schedules of police officers.

"Today there are several officers out standing around a crane, trying to arrest a suspect," Howard said May 27, referring to the three-day police standoff with a Florida murder suspect who took refuge atop a 25-story crane on Peachtree Street. "If you subpoenaed one of those officers today, they wouldn't get the subpoena."

Howard says his office is looking at the issue of how to get more cops to show up at preliminary hearings and will be talking to Atlanta police officials. Quigley says the police department will discuss the issue with the district attorney's office.

Two years ago, Atlanta City Court faced a similar problem with officer no-shows. So the court, which hears traffic violations, began to require that cases continually be reset in the event that an officer does not show. As a result, traffic violators often have to return to court several times on a charge of, say, running a red light - while in Fulton County, a suspect charged with felony drug possession might be released the first time the officer fails to appear at a preliminary hearing.

"It would seem to be backwards, wouldn't it?" Howard says.

One solution might be to hit officers where it hurts - in their wallets. Hicks says that in the 1970s, officers were fined when they failed to show at preliminary hearings. He says officers were more apt to show up for hearings when that policy was in place.

Rambo says that docking officers' pay when they fail to respond to a subpoena is a reasonable option. But he worries that it might lower officer morale.

"We are dealing with burned-out cops who have to write the report, gather the evidence and then sit through preliminary hearings for over 100,000 cases," Rambo says. "If you have burned-out, pissed-off police, then the public is not going to have the type of service that they expect and deserve and that they pay their taxes for."