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Unwarranted Arrests?

There are enough warrants issued here to jail every fifth person in Knox County—including many frivolous cases.

by Betty Bean

There are many safeguards--investigations, preliminary hearings, grand jury proceedings, motions, and trials--before a citizen becomes the accused, the accused becomes a suspect, a suspect becomes a defendant, and a defendant becomes a convict. The state must prove its case beyond a reasonable doubt, or the defendant walks.

And the truth will set you free.

But not always.

"Anybody can raise their right hand, make allegations, and get someone arrested. Typically, there is no investigation before a warrant is issued and a defendant arrested," says criminal defense lawyer Greg Isaacs.

The simple, undisputed, and little talked-about fact is that not only can most anybody get most anybody else arrested, but there is a thriving industry that depends on feeding fresh meat into the criminal justice system. While no one would argue that criminals shouldn't be locked up, there are enough warrants issued here to jail every fifth person in Knox County. And sometimes the innocent pay along with the guilty.

"You see victims' rights groups talk about criminals walking free-- well, I don't see criminals walking free," says Isaacs. "Anybody, any day, can make an accusation and someone'll knock on your door and take you to jail. And no one gives a damn. It doesn't shock anyone's conscience."

While he doesn't maintain that all his clients are citizens unjustly accused, Isaacs, like most experienced criminal defense lawyers, can reel off a list of those who were arrested and caught up in the system on questionable charges:

Even District Attorney General Randy Nichols admits that warrants aren't hard to get.

"I could go have you charged with stealing my wallet this very day," he says. "You could be in jail this afternoon..." He maintains, however, that the case would most probably be thrown out in General Sessions Court, the lower-level court where preliminary hearings are held on felony cases, and where misdemeanor trials are generally resolved.

"It would be difficult for us to prevail on proof beyond a reasonable doubt."

Lawyer Herb Moncier says hoping for justice in Sessions Court is too little, too late, for those wrongfully arrested.

"It's not uncommon for someone who is arrested to be jailed for most of a day...if that's no big deal, that is a very poor expression of our view of the rights of ordinary citizens to be free of unlawful imprisonment. Liberty is the most valuable asset we have and the most fundamental freedom a person has.

"Secondly, it creates a whole taint on a person's good name. While an individual may be able to have the charges dismissed and expunged, that is an illusionary right. Private law enforcement records are still maintained. Often, fingerprints are sent in to the FBI, the TBI; private files are maintained by the DA's office and the sheriff's office. Once your footprints get into system, the protection of the Constitution that says nobody should be arrested except on probable cause supported by oath becomes subverted...The end result is it's relatively easy to get a criminal warrant to have someone arrested. And the remedies we afford that individual are not very good..."

Isaacs also says it is no small thing for innocent people to be arrested, processed, and make bond for a crime they didn't commit.

"Somewhere along the way prosecutors forgot that their job is as much to free the innocent as to convict the guilty. The system chews you up and spits you out. And when you get out, you're gonna be dirty and you're never gonna be the same..."

Bill, a 58-year-old South Knoxvillian who owns an appliance repair business, has been caught up in the system since last October; although the case against him was dismissed in a General Sessions Court trial, he says he's lost hope that things will ever be back to normal again.

His legal problems started when he heard someone had taken a warrant against him for something he was accused of doing 10 months earlier. He hired a lawyer, went down to the jail, and turned himself in. He was processed, booked, and cut loose on a $500 bond.

To an outsider looking in, the charge might seem fairly picayune--a misdemeanor theft charge involving a 10-month-old allegation. But to this self-described "worrier" whose only prior brushes with the law were a traffic citation for a loud muffler and a cross-complaint on a landlord-tenant dispute back in the early sixties, it was a nightmare.

"I've not had one good night's sleep in six months," he says. "This thing has beaten me senseless."

The root of "this thing," as he calls it, goes back to last January when he and his helper called on a North Knoxville home to fix a broken dishwasher. Bill, who has been in business here for more than 20 years, was in the process of temporarily shutting down to undergo surgery, and this was one of his last scheduled calls. He learned that the homeowners were accusing him of stealing items from their kitchen when a friend presented him with a videotape of a local news broadcast a few days later, branding him a thief and a rogue repairman. He shut down, went into the hospital, and re-opened in September.

In October, the homeowners took out a warrant against him. His trial was set for Knox County General Sessions Court in November. There were some 70 cases on the docket the morning of his hearing, and he was the only defendant who pleaded not guilty, an act which seemed to surprise and annoy the prosecutors.

The proceedings came to an abrupt end when the complaining witness said Bill wasn't one of the men who'd come to her house. The case was dismissed.

But it didn't stop there. The witness said the real thief was another man who had been in the courtroom--an employee of Bill's who had come to court in case he was needed as a witness. The employee, Tom, is a dispatcher who works out of his home in Northeast Knox County. His job is to answer the telephone.

Lead prosecutor Andy Jackson, now even more obviously annoyed, announced his intention to arrest someone on the spot and ordered Tom and a third employee of Bill's to stand up and give their names. The two men complied, and the witness pointed at Tom.

The judge, Geoff Emory, obviously uncomfortable with this turn of events, recused himself and said they'd have to find someone else to sign the new warrant. Assistant prosecutors Kevin Allen and Jack Marecic set out to find the judicial commissioner on duty.

Meanwhile, the complaining witness told the prosecution team that Tom, Bill, and the other employee live together in the same house and have for years traveled about the countryside defrauding and robbing unsuspecting appliance owners, an abbreviated version of which story Marecic would presently repeat to Brenda Lindsey, the judicial commissioner on duty downstairs at the jail. Lindsey didn't allow defense attorney Dennis Francis to speak, and she signed a new warrant without asking questions.

Tom was immediately arrested, booked into jail, and bonded out until his preliminary hearing in January. Bill paid lawyer Francis a second $1,500 fee to represent Tom.

Two months later, Tom was bound over to the grand jury after a trial featuring testimony of the "he said/she said" variety. This means that the case will be presented to a grand jury, where, typically, only the prosecution's side is heard and, typically, most defendants are indicted. Had Tom not been able to pay his bond, he could have spent days, maybe weeks, in jail. There will be an additional attorney fee.

Meanwhile, Bill, who worries about the effect of the case on his business, is taking responsibility for his employee's legal expenses. He takes a dark view of his future.

"We'll probably have to go to trial, Tom'll be a nervous wreck, my girlfriend'll leave me, and I'll probably have to go bankrupt," he says. "She says if you get accused you're 75 percent guilty--that I must be guilty of something to get into this much trouble..."

Statistics compiled by the Circuit Court Clerk's office show there were 69,673 warrants filed in Knox County in 1995. Among those were 3,138 felonies, 22,368 regular misdemeanors, and 41,167 cited traffic misdemeanors (mostly traffic offenses).

Unlike federal charges, which must be originated by a U.S. attorney, state proceedings can be set into motion a number of different ways. Warrants may be written by the office of the district attorney general, by law enforcement agencies, or by individual citizens or agents of businesses. They must all be signed by a judge or magistrate.

The length of time between being named on a warrant and being taken into custody can vary wildly. Tom the dispatcher--who has no prior criminal record--was jailed immediately upon being accused. A week earlier, 27-year-old Gregory Gregg called 911 and reported that he had shot his wife Anita and his 12-year-old stepson Dewayne Kesterson, claiming they'd tried to ambush him. The attorney general's office instructed sheriff's deputies not to take Gregg into custody. Sheriff Tim Hutchison, under a law that allows him to hold a suspect up to 72 hours without charges while an investigation is proceeding, disregarded the prosecutors' orders and jailed Gregg, who was charged with two counts of murder the following night on warrants prepared by the sheriff's department.

Moncier was in on the inception of Knox County's judicial commissioner system, which now employs five judicial commissioners empowered to sign criminal warrants. These commissioners are lawyers who are not allowed to practice criminal law, are stationed in the jail, and are available 24 hours a day. The pay is relatively low--around $23,000 a year. They serve by appointment of County Commission. Theoretically, it is a part-time job, although they average working more than 40 hours a week.

This is where citizens go when they want to have someone arrested.

Moncier would like to see radical changes made in the system.

"These judicial commissioners should be trained in the criminal laws of this state, just as a judge would be. It is important that we not just have a person there, but that we have a person there who is independent, trained, neutral, and detached."

He sees the camaraderie that develops between the judicial commissioners and law enforcement officers as a serious problem that should be remedied.

"One suggestion is to have them removed from the facilities where they're working. They primarily work in the jail. That's convenient, but it seems to me that a magistrate should sit on a bench and be neutral and detached. Another suggestion is that each judicial commissioner should go through a school and have specific training and screening. Also, we just need to be very careful to let them serve as a check and balance and wall between prosecutorial branch and the rights of the citizenry. That's what a magistrate is supposed to do--not to serve law enforcement.

"Hanging around the jail breeds difficulties. I'll bet you can think of a thousand administrative reasons not to take people up into the courtrooms--security, expense--but protecting our rights is not meant to be cheap. It seems we've put the price tag of justice over justice itself."

But having said all that, Moncier admits that things are better than they used to be.

"We've made improvements. It used to be that police officers would fill out warrants and leave them for a judge sign the next day. Judicial commissioners are a step in the right direction..."

Nichols says Bill's case "would be extremely rare. One in 69,000 ain't bad."

While he says the circumstances of Bill's case are unusual, he explains that foul-ups sometimes happen because there isn't much opportunity to investigate warrants at the General Sessions level.

"I would have handled (Bill's case) a little differently," he says. "Every young prosecutor goes through a ritual of getting cooked, getting lied to..."

But he says help is on the way for the problem of weeding out bad warrants and unfounded charges.

"We're going to start screening," he says. "We are going to be involved making sure they're good warrants, issued on valid cause. I want my prosecutors to be aggressive, to stand up for my victims. "It's too late to screen out these things in the courtroom."

One of the two prosecutors in charge of screening warrants will be Jack Marecic, the young assistant DA who solicited the magistrate to sign the warrant against Tom, based on the information that he was part of a ring of renegade appliance repairmen running loose among the populace.

Nichols says he means to slow down the industry--magistrates, jailers, bondsmen, court officers, lawyers--that is fed by the legal process that begins with the issuance of warrants.

"It's costly," he says. "And this doling out of money on these bullshit cases needs to end. The gravy train is about to stop."

Some might argue that the grant from the federal government through the state of Tennessee providing funding for two additional assistant attorney generals to screen warrants is a brand-new caboose on the very gravy train Nichols deplores. The more warrants are written, the more prosecutors can be hired.

Others are dubious about the personnel who will staff the screening program, set to be fully operational March 1.

"I don't think there's anything inherently wrong with the plan, but doing it after the fact is too late," says Public Defender Mark Stephens. "And I'm skeptical about who will be doing it. It needs to be someone like (Assistant Attorney General Bill) Crabtree with a good feel for the law and for people; not one of those young guns that doesn't know his ass from a hole in the ground."

Stephens says that the "industry [of the criminal justice system] demands that we keep issuing warrants. Our office depends on our little piece of the court costs."

The public defender receives a share of a fee intended to compensate lawyers for cases resolved in court, as well as an assessment added to court costs on warrants to defray indigent defense costs.

Underlining Stephens' point is a sort of receipt listed under "Fine and Bill of Costs" on the back of criminal warrants. There's $27.25 for county litigation, a $25.75 state litigation tax, a $1.25 library tax, $10 to $25 for the brain injury fund, $6 for a session judge tax, $15 for getting arrested, $75 to the attorney general, $38.50 per day jail fee (even for defendants like Bill, who spend no real time in custody--if they're real unlucky, they'll be processed just before midnight, so they can be charged for a two-day stay), and perhaps best of all, $5 for the bill of costs itself.

Not surprisingly, Stephens disagrees with Nichols' contention that innocent people rarely get caught up in the judicial process.

"It's not the rare case where you find a defendant is not guilty as charged. The judicial commissioner only hears the victim. When you go to the preliminary hearing, often the defendant is never heard from, nor does he go to the grand jury.

"Sessions Court makes me sick," he says. "The biggest mass of people going through General Sessions Court don't have the opportunity to make a statement. In fact, of all the seven steps involved in the criminal process--arrest, Sessions Court, grand jury, arraignment, trial, the Court of Criminal Appeals, and the Supreme Court--it's only at the trial stage that the defendant's voice is heard."

Nichols says those who have been unjustly prosecuted have a perfectly good remedy: a lawsuit for malicious prosecution.

Against him?

"Nah," he says. "We're immune. They'd sue whoever had them arrested. Liberty is fairly important."

Small comfort, says Isaacs.

"Most of the time, people who make unfounded allegations are suit-proof (meaning they don't have sufficient assets to make suing them financially worthwhile).

"And the victim becomes so jaundiced that the last thing they want to do is see the inside of another courtroom. For every Richard Jewell you see on TV, there are 15 or 20 walking around this courthouse every day."

Moncier agrees that such lawsuits are difficult to pursue.

"Only the most egregious cases have a chance," Moncier says, "if the person who swore out the warrant did so with a malicious intent to injure the other person and without probable cause."

Stephens says a simple change of attitude could go a long way.

"I've never heard a simple 'Gee, we're sorry; we were wrong.' That would help."

For example: A young father is charged with assaulting a woman over a bad call at a little league game. An independent witness testifies at the preliminary hearing that the "victim" was actually the aggressor and appeared to be very drunk. The charge is thrown out, but due to a clerical mistake, gets reinstated. He is bound over to the grand jury, where he is indicted by "mistake."

"Instead of them saying 'Oops, we goofed,' he had to hire a lawyer and file motions," says Isaacs. "The first assistant attorney general I talked to didn't even want to take time to pull the file."

Nichols says he doesn't owe anybody an apology and is pretty sick of complaints from defense attorneys:

"I've told 'em to stop whining," he says. "They whine because Rebecca Bell (Nichols' DUI prosecutor) won't reduce the charges on a case because Johnny loves his mother and keeps a clean room. They whine about everything."

He believes that around 20 percent of warrants should be thrown out because they've been overcharged, or the affidavit outlining the facts doesn't support the complaint.

"We've got to direct our limited resources. If we do a good job on screening, we won't have this problem. And once I'm up and running with the screening unit and a warrant is issued, you're on a rocket ride."

This is no comfort to Bill, who says he gets "the nervous jerks when I knock on a door to go into a customer's house, wondering if it'll be someone else who'll do this kind of terrible thing...I've adopted a real bad attitude. If I go down the tube on this thing, it is the end of my life as I know it. This is all I've ever known. I'm gonna win, or I'm gonna suicide."

Reporter's note: The catalyst for this story was Bill's preliminary hearing ,which I attended because my brother works for him. I walked into the courtroom as an interested citizen. The reporter's notebook came out when I found myself astounded at what I saw.