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The Dismissal Dilemma

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 By Tom Ferrick Jr.

When John Timoney became police commissioner in March, 1998, he delivered a shot of adrenalin to the Philadelphia police department.

Timoney - an ex-New York City street cop - was a believer in using modern tools to fight modern crime.  He was the man who brought CompStat to the city, the computer/numbers driven method of crime analysis.  He also was a proponent of the "Broken Window" theory of policing - that it was important to pay attention to little crimes as much as big ones. 

Under Commissioner Richard Neal, Timoney's predecessor, police concentrated on chasing after the baddest of bad guys, and, de facto, ignored routine neighborhood crimes - petty theft, break-ins, theft from autos, curfew violations, vandalism, rowdy behavior, etc.

Not Timoney. His rule was to round 'em up. Go after neighborhood crime. Make arrests.

Results were dramatic and quick in coming.

John Timoney.jpgIn the first seven years of the 1990's, police sent an average of 42,500 cases a year to Municipal Court, including major and minor crimes.

In the five years Timoney served as commissioner, the numbers rose by 36 percent --  on average, 58,000 cases a year went to Municipal Court in the period between 1998 and 2002.

The minor crimes - misdemeanors - Municipal Court handled itself, disposing of cases at a trial presided over by a judge. The usual result was probation and or a fine or a short prison sentence.

Municipal Court also acted a gatekeeper for major crimes by holding preliminary hearings. If sufficient cause was found to advance the case, it was sent to Common Pleas Court for trial. This is where rapes, murders, robbery and burglary cases went.

When it came to major crimes, a funny thing happened when Timoney pumped more and more cases into the court system.

Nothing.

During the seven years of the  Neal era, Common Pleas Court handled an average of 16,038 felony cases a year.

During the Timoney era, Common Pleas Courts handled 16,200 felony cases a year.

In other words, while the number of arrests went up by 36 percent, the number of cases reaching Common Pleas Court went up 1 percent.

This was odd.

When I examined the phenomenon, I discovered that the dismissal rate at preliminary hearings on felony cases in Municipal Court had averaged 29 percent during the Neal era. It jumped to an average of 45 percent in the Timoney era.

Within a few years, the dismissal rate hit 50 percent, then 52 percent.

When the Inquirer examined modern trends in detail in its series on the courts last year, it found that 55 percent of the felony cases were falling by the wayside.  Most were being dismissed in Municipal Court before they could get to Common Pleas.

The Inquirer reported that Philadelphia had the highest dismissal rate in the nation.

The series rightfully caused an outcry and a promise by the state Supreme Court, which oversees administration of the courts, to reform.  Justice Ron Castille delivered on part of that promise this week, changing rules of the court in order to lower the scandalous dismissal rate.  He has also asked Justice Seamus McCaffery to oversee more reforms and McCaffery has named a panel of judges, lawyers and prosecutors to come up with recommendations.

I mention this as background as to what is about to come - a pushback by the defense bar on attempts to reform Municipal Court.  There's already been grumbling about the composition of McCaffery's commission - too tilted towards the prosecution bar, not diverse enough, etc.

This is a prelude to a bigger fight.  The back story is that Castille, a former Philadelphia district attorney, and McCaffery, a former Philadelphia policeman, are considered "pro-prosecutor" by the defense bar and therefore anti-defendant.

This is nonsense, but it is useful nonsense in the political world of the bar.

The argument of the defense bar is that while the current preliminary hearing system has "flaws" it generally works well.  Defense lawyers complain about "garbage cases" brought by police. And they deny any gaming of the system by defense attorneys to get their clients off using the existing vagaries in the rules governing prelims.

(One of the worst is the three-strike rule: A judge will try to hold a prelim several times, but if it is continued for any reason - a lawyer not ready, a witness not present, the arresting policeman absent - the case will be dismissed after the third try. )

Finally, the defense bar (and many judges) argue that Philadelphia is unique among all jurisdictions in the Commonwealth, so it must operate under different rules than everyone else does.

That's why I cited the facts at the top of the story.  Philadelphia's dismissal rate is not due to unique circumstances.  When the case load was smaller, the dismissal rate was lower -- and more in line with the rate in some other big cities.

When the caseload went up, the system responded by dialing up the dismissals.  It was a way of managing flow. It was a bureaucratic rejection of a new and aggressive style of policing.

So, don't let the verbiage divert our attention from this salient fact: the dismissal rate was lower before and it can be lower again.

 

Tom Ferrick is senior editor of Metropolis

 

 

 

 

Photo: Commissioner John Timoney 

 

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