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TO: The Honorable Casey Moreland

Presiding General Sessions Judge



FROM: Steve Anderson
Deputy Chief of Police

RE: Judicial Commissioners

DATE: March 31, 2005


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.
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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
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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
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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
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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
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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
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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).