Why are hundreds of cases dropped over insufficient evidence?
Published: Sunday, December 16, 2012 at 6:01 a.m.
Last Modified: Sunday, December 16, 2012 at 5:34 p.m.
The 2009 arrest of then-University of Florida baseball player Stephen Locke Jr. on a DUI charge was a grand slam — at least based on the police report.
Locke was weaving through traffic, it said. He was going 10 mph below the speed limit. His breath smelled like alcohol, and his speech was slurred. He used his SUV for balance after he was pulled over.
But those details in the arrest report did not match reality as seen through the dashboard camera of Gainesville Police Officer Daniel Surrency.
“There is no corroborating evidence, specifically meaning that none of that is on the video,” State Attorney Bill Cervone said at the time. “On the videotape, the defendant does not appear to do anything such as stumble or sway.”
Within two months, Cervone dropped the charges.
Locke was a high-profile case, but his was not an isolated incident. He was just one of hundreds of people arrested each year by the Gainesville Police Department and Alachua County Sheriff's Office whose charges later are dropped because of insufficient evidence.
A review by The Sun shows the top reason cases are dismissed for ASO, and the second- or third-most-cited reason for GPD, is because prosecutors determine they do not have enough evidence to get a conviction.
In 2011, ASO made 4,972 arrests and dropped a total of 510 cases for insufficient evidence and related reasons.
Over the same period, GPD made 10,845 arrests and dropped 917 cases for the same reasons.
Those in the legal system can disagree about whether the statistics indicate shoddy or overzealous police work, flawed lawyering or just a complex process functioning as it should by weeding out weak or bad arrests.
What is clear, however, is that these dismissed cases come at a considerable price to taxpayers and those arrested.
For defendants, there is the loss of liberty compounded by the costs of posting bond and arranging legal counsel. There also can be damaging impacts such as having an undeserved arrest record, and ramifications — such as possibly losing a job — because of it.
“We currently live in a world where an arrest destroys somebody's life,” said Craig DeThomasis, a Gainesville criminal defense attorney. “There is no such thing as turning back the hands of time and undoing a bad arrest. The concept of expungement almost isn't worth anyone's time anymore because, within 24 hours of arrest, the public database is accessed a thousand times by private databases, and it's out there forever.”
For taxpayers, the costs include salaries for police officers, investigators, corrections officers, prosecutors, defense attorneys and all of the ancillary staffers who make the judicial system run.
And as is the case with Locke, such dismissals can result in costly lawsuits.
Locke, who was dropped from the UF baseball team because of the arrest, is now suing the city of Gainesville, Surrency and Officer Joey Devore for damages of more than $75,000. Neither Surrency nor Devore work for GPD anymore.
About 43 percent of arrests made by GPD and ASO are dropped, data from 2008-11 show.
It is difficult to put that number into context because Florida's state attorneys do not have a uniform system for tracking the reasons cases are dropped, making it impossible to compare the circuits.
Several Florida prosecutors interviewed by The Sun, however, indicated that the numbers for the 8th Circuit — which encompasses six counties, including Alachua — seem similar to those for their offices.
The State Attorney's Office, which decides whether to file a charge based on an arrest, has 71 coded categories for dropped cases. Many are obvious — victims and witnesses could not be located; victims do not want to prosecute; other resolutions are reached.
But time and again, cases are dropped for insufficient evidence.
Cervone, the state prosecutor, said there are many reasons an officer or deputy will make an arrest that might not be prosecuted.
“A good example is all these schoolyard fights,” he said. “They may be technically batteries. Give me a break, I'm not doing it.
“There are more that are just not worth the fuss, that I don't have the resources to devote to it. It is technically a crime, but it is not something the criminal courts need to be involved in from my view.”
Other times, an officer or deputy makes an arrest to quell a volatile situation.
“You get community groups that just want the little thug taken off the street corner. That is the cops' immediate problem — to solve that,” Cervone said. “There is a cop theory that, ‘At least I took X amount of drugs off the street.' … I understand that.
“It's part of the cost of doing business,” he said.
He said dropped cases also can result from a lack of understanding on the arresting officer's part of the requirements of certain laws or that laws have changed through court rulings.
Increasingly, he added, police are arresting people who are mentally ill. The case against them may not be prosecutable, but the officer had no other option to resolve the situation.
Overall, Cervone said, “the number of purely bad arrests, illegal arrests, I think is small.”
GPD Officer Jeff McAdams, president of the Gator Lodge of the Fraternal Order of Police, said officers are “encouraged” by their supervisors to makes arrests and added that employee honors such as “officer of the month” often are given for arrests.
Police Chief Tony Jones, McAdams said, expects officers to take control of their zones. That could lead to arrests that later are dropped by prosecutors.
Jones declined repeated requests to be interviewed for this article.
Alachua County Sheriff Sadie Darnell said training and experience help deputies make cases that are based on solid evidence and fairness. Deputies are told to call a supervisor for guidance or a second opinion if unsure.
But she said it goes both ways. Officers, she said, sometime believe that prosecutors are not aggressive enough at pursuing their cases.
“During my course of making arrests, there were times when I would become frustrated or disappointed if I felt the case was solid and serious,” she said. “And I'm sure there are times currently that deputies are disappointed if the case isn't prosecuted to the max.”
Public defender Stacy Scott, whose office handles the bulk of the dropped cases, said she understands the perspective of law enforcement — to a point.
“They are on the front lines of conflict, and sometimes there is enough evidence to prosecute, probable cause, but the state attorney needs good faith beyond a reasonable doubt,” she said.
“On the other hand, I think there are instances where police may just, they are human beings. They may lose their temper. Someone might be giving them attitude, and they may choose to exercise their arrest powers in an inappropriate fashion. I think that happens, too.
“We definitely see cases that some flippantly refer to as contempt of cop cases, where somebody was just verbally expressing themselves to a police officer and all of a sudden they are arrested,” she said.
“Because police officers are in a position of authority,” Scott said, “because they have the power to take away someone's liberty by arresting and also have the power to take away someone's life through the use of force — because of that they have to be under a higher level of scrutiny than most other professions.”
Other defense attorneys take a harsher view.
“It would amaze the public how egregious some of the lies are,” said Gainesville attorney Robert Rush, who is representing Locke in the suit. “There are so many excellent officers out there. They say it like they saw it — just the facts.
“But we all know there (are) officers who can always smell the marijuana, whose dog always alerts on the car for having contraband in it, and yet there were no drugs in the car. How come the dog alerted? Because they are making it up.”
Arrests, good and bad, put a strain on the jail and the judicial system.
The Alachua County jail, run by the Sheriff's Office, is routinely at or above its capacity. The jail has a rated design capacity of 980 and recommended capacity of 833. The average daily population in 2011 ranged from more than 900 to more than 1,000.
The Sheriff's Office reported it cost $75.72 a day to house an inmate in fiscal year 2011.
As for costs to taxpayers, exact figures are difficult to establish. Cervone estimated that it costs $21 an hour for a misdemeanor prosecutor to work on a case.
“The staff is here anyhow,” he said. “What it really costs is the distraction of energy and attention from other cases that do have to go forward. It's not like my people get overtime, so there is no cost there. We don't get paid by the case.”
Public defender Scott agreed that non-prosecutable cases take time away from others that are more important.
“Our caseloads are too high,” she said. “It adds to our caseload and distracts from the cases that require more work and that we need to litigate.”
DeThomasis, the defense attorney, said he believes the number of dropped cases by the State Attorney's Office is an indication that the system is working — to an extent. The standard of probable cause that police must meet for an arrest is much lower than the evidence needed by prosecutors to successfully prove a case.
“In one way, there should be nothing alarming about the number of cases dismissed because that is a function of the state attorney doing the right thing and not proceeding on a case that cannot be proven beyond a reasonable doubt. That's a good thing.
“But, it's alarming that the state attorney is being put in that position more often than people would expect,” DeThomasis said.
“Just because they drop it doesn't mean necessarily that police made an invalid arrest,” he said.
But he added a caution. “There are, I believe, an alarming number of cases where it does mean that exactly.”