Curbing a cash cow: Plan would limit cops' excessive overtime in court

 

The simplest solution to Collars for Dollars abuse is by no means novel: Pay Dade cops to come to court only when they're needed, and their financial incentive to piggyback on drunk driving cases suddenly vanishes.

That's what Broward and other counties across America do.

In April, Dade took a step in that direction. Under a pilot program, hundreds of police officers subpoenaed to County Judge Wendell Graham's courtroom were told not to show up unless their case was firmly set for trial.

The pilot program has been embraced by Dade State Attorney Katherine Fernandez Rundle and the chiefs of Dade's three biggest police departments. But it needs funding and the support of Dade's judges to expand throughout the courts. There is no commitment yet for long-term funding. "Here we have a great program, and the state can't find finances for it, " said Miami Beach Police Chief Richard Barreto. Many believe the program is the only way to fix a system that has cost taxpayers millions and is wide open for abuse by unscrupulous police officers. "I think the officers are going to get away with it until someone stops them, " said retired Metro-Dade Police Maj. Donald Matthews, who transferred two officers a few years ago because of alleged DUI overtime abuse. Others, however, say the pilot program won't solve every problem. Top DUI attorney Robert Reiff said defense attorneys will have to take more sworn statements from police because the officers won't be available to answer questions prior to hearings. Cases will take longer to resolve, predicted Reiff, the author of a textbook on drunk driving defense law. "If you try to go to one of these standby systems, it's going to be a mess, " Reiff said. His suggestion: Police and prosecutors need to tighten their procedures to prevent unnecessary police witnesses from showing up in court. "Let me put it this way, " Reiff said. "I've had many officers thank me for making their Christmas." Right now, Dade's night shift police get overtime to come to court and sit around while their cases get postponed repeatedly. Aware of this loophole, police here "piggyback" on cases in order to go to court and make money they don't deserve. No prosecutor in the Dade state attorney's office screens out the unnecessary police witnesses. Instead, secretaries are left with the job of sending court subpoenas to all of the officers. "Mr. [Michael] Satz, the state attorney, would have a nervous breakdown if we did it that way here, " said Kristin Raybon, senior assistant prosecutor in Broward County Court. Officers react If the Dade pilot program is expanded, midnight shift officers will lose the opportunity to make large amounts of court overtime. They don't like that. "I'm not going to show, " Miami Police Officer Paulino Aristades said outside Graham's courtroom on April 28, the first day of the pilot program. "They can kiss that case goodbye." Officer Serge Diez: "The conviction rate may go down. Sometimes, it's hard to find an officer." The officers who grumble won't find much public sympathy, said Carlos Alvarez, director of Metro-Dade Police, the county's largest police agency. "What are the officers going to complain about -- the fact that they're not getting paid to sit around and do nothing?" he asked. The problem appears to be unique to Dade. A Herald survey of courts in Manhattan, Los Angeles, Chicago, Boston, Dallas, St. Louis, Phoenix, Portland, Ore., Jacksonville, Orlando, St. Petersburg and Broward County found they all have systems to minimize the number of officers who come to court. A program in place Police chiefs in Dade have another good reason to support the pilot program: A version is already in place and saving money in Juvenile Court, where cases often involve repeat court appearances -- just like DUI cases. Hammered by overtime costs, Metro-Dade Police launched the juvenile program in November 1995 and expanded it to all juvenile courtrooms in April of this year. The "standby" system, as it is called, requires off-duty officers to be reachable by phone or beeper on scheduled trial days so they can be summoned to court within two hours. They no longer show up for every hearing. The savings are dramatic, because a small minority of cases actually make it to trial. The proof: From April 14 to May 14 of this year, 604 off-duty Metro officers were subpoenaed to Juvenile Court, but only 15 were called to testify. That meant 589 cops who would have been paid time-and-a-half for at least three hours -- their minimum by contract -- didn't earn a penny. Metro Cmdr. Harriet Janosky estimates that juvenile standby will save the department $445,000 in its first full year. Police court overtime has been mounting for years, to the chagrin of police chiefs and politicians, but nobody has been able to put teeth in the efforts to cap it. It now costs Dade's three biggest departments more than $7 million a year. Miami Police Chief Donald Warshaw said it's difficult to change a "police culture" long built around cops gathering in large numbers at arrest scenes, and subsequently going to court. "When I joined the department in '72, my training officer said, 'We're going to court.' And I went to court, " he said. A joint effort To fix the problem, Dade's police chiefs, state attorney's office and judiciary teamed up to start the pilot program in Judge Graham's courtroom. The program allows both sides in a case to get together the week before it's set for trial. The judge, prosecutors and defense attorneys figure out which cases are ready to proceed. Officers in that handful of cases are notified to come to court. But since the vast majority of cases never go to trial, dozens of police officers who would otherwise have come to court do not -- an automatic, substantial savings. It appears to be working so far. In the first 10 weeks, 305 off-duty Metro officers under subpoena did not have to go to court. Miami Police project $342,000 in annual savings if the program is expanded throughout County Court. Miami Beach Police project $225,000 in savings, and Metro at least $500,000. The program may do more than save money: It also will help Rundle's prosecutors because they will have fewer witnesses to keep track of. "That should result in fewer dismissals, not to mention just the number of people milling around County Court, " Rundle said. Program now limited The pilot program won't save much money, however, unless it expands to all eight courtrooms of County Court, proponents say. Before that happens, somebody has to commit to fund more "witness coordinators, " who notify police when to come to court or stay home. The county's police departments, acting through the Dade Chiefs Association, have agreed to cover costs for the first year, using money confiscated from drug dealers. But the police want the rest of the criminal justice system to pitch in. Dade can do something else to fight Collars for Dollars abuse. Broward and other counties screen out unnecessary police witnesses by reviewing case files before subpoenas are issued. While the name of every witness must be provided to the defense, there's no need for all witnesses to be summoned. The result: In Dade, a DUI case often means four, five or six officers attending court. In other places, routine DUIs require two, occasionally three cops in court. Rundle said she will press the police to include codes that identify officers' roles in cases so her prosecutors can screen out unnecessary police witnesses. Raybon, the Broward prosecutor, said screening by lawyers is an important step because police usually "list a lot of people who saw the same thing" and prosecutors rarely need all of those officers to testify. "And the more people you put on the stand, the more chances you have to have conflicting testimony, " she said. Results of screening Screening unnecessary officers would create substantial savings for all misdemeanor cases. In a cockfight bust last year that netted 140 arrests, six officers were subpoenaed for every trial date, even though only three of them were needed to testify. It cost Metro Police more than $54,000 in court overtime. "If I was the state attorney, I'd probably list two people, maybe three, in case [the lead officer] is sick or takes vacation, " said defense attorney Jorge Alonso, who defended several people accused of violating county animal ordinances. "But you don't need to list eight guys, because every time a subpoena is generated, everybody gets on the gravy train." Defense attorneys can turn the police piggybacking to their advantage. They seek continuances every time a police witness fails to appear in court. That prolongs the case, often making it easier to negotiate a lighter charge or dismissal. "Most defense attorneys are winning cases because the state is not ready, " said Scott Kotler, a former DUI prosecutor. There remains one significant threat to any solution for Dade's Collars for Dollars problem. What will cops do? What if the cops won't go along? When the pilot program began, Metro officers sent a clear message about where they stood on the effort: Their drunk driving arrests plunged 47 percent in April and 34 percent in May. "Eighty percent of the cops tell me, 'I'm going to make less DUI arrests, [since] it's a misdemeanor, a discretionary arrest, ' " said Alonso, the defense attorney. "If they're not going to make money out of it, they're not going to make as many cases." State Attorney Rundle was outraged to hear the drop was deliberate. "That's the most irresponsible, shocking reaction by someone in law enforcement, " she said. Rundle said a cadre of Metro officers opposed to the pilot program "were retaliating against us, being verbally belligerent to our assistants." Their names were reported to their department. Metro Sgt. Jose Zarraga was on the list. He said the department's heightened scrutiny of officers active in DUI enforcement -- combined with the new pilot program -- resulted in Metro's drop. "The officers were just trying to make a point, " said Zarraga, who coordinates DUI enforcement for Metro. "They felt they were being unduly subjected to all this scrutiny." Dade's police chiefs said most of their officers are professionals who will continue arresting drunk drivers and going to court. Alvarez, Metro's director, said any deliberate drop in DUI arrests would backfire. "Money should never come into play, and if we have officers doing this -- I believe it's very few -- and they're trying to send a message, it's the wrong message."

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