This is the first of a series on how MPD members game the system, as part of a pervasive pattern of corruption in the force. Some of these behaviors are sophisticated and interact in subtle ways, so we will look at a single regulation at a time.
The first topic in this series is MPD DR 501, from Chapter 1 Section 3 of the MPD Policy and Procedure Manual.
DR 501 ATTENDANCE (sic) IN COURT
All commissioned members of this Department are considered officers of the court and shall testify or give evidence before any Grand Jury or court of law when properly called upon to do so and when there is no properly asserted constitutional privilege, or when immunity from prosecution has been granted.
A. Members required to appear in such cases shall be punctual in reporting, alert, dignified, and calm in demeanor.
B. If an emergency prevents attendance, the designated authority will be notified by the member.
Sequence of criminal justice events.
To understand how this rule is abused, we note that the sequence of criminal justice procedures after an arrest is usually:
- Arraignment, where bail is set
- Possible proffer by the prosecutor’s office
- Arresting officer files an arrest affidavit, which recounts the events preceding the arrest and the laws allegedly broken
- Preliminary hearing, in which the arresting officer is required to appear in court and prove probable cause for the arrest.
- If the preliminary hearing establishes probable cause, the case may go to trial.
DR 501 may be abused, and the course of the case controlled, by the arresting officer not turning up in court for the preliminary hearing. When this happens, the case is dismissed without probable cause for the arrest ever being established. Although this is a breach of DR 501, the penalty usually ranges from a slap on the wrist to two days suspension. The cost to the defendants is usually many times greater.
We have seen three circumstances where the arresting officer might not turn up for the preliminary hearing.
1. The arresting officer has knowingly made a wrongful arrest and probably never had any intention of turning up for the preliminary hearing.
2. Police ‘courtesy’. When a police officer is accused of a crime, the arresting officer might not turn up, so that the charges are dismissed against the fellow officer.
3. We believe that officers who make an embarrassing mistake in the arrest paperwork may avail of this technique, and may possibly be pressed to do so by other interested parties. This may prevent testimony going on the record that could be used in a civil action.
The city does not publish statistics on the number of cases which are dismissed due to the arresting officer not turning up, but we have researched fourteen cases which we will describe below.
Removal of court records
In every case described here, the official County records have been removed. This makes it hard to prove what happened, but we have some sources, including records copied before they disappeared. Many of the defendants figure in civil or CLERB cases and there may have been an organized cover-up.
Deliberate Wrongful Arrest.
MPD members seem to believe that they have a right to arbitrarily arrest members of the public who are not committing a crime, and then not attend the preliminary hearing to make the case go away.
The screen grab above was taken from the Memphis Police Association Facebook page in June, 2016. “A weekend at 201 Poplar. No more protesters, just saying”. Police attitudes to freedom of speech are also on display.
The two protesters arrested were Maureen Spain and the author, Fergus Nolan.
I was arrested while photographing police operations, a constitutionally protected activity, which is also explicitly permitted by MPD policy.
Maureen was arrested while attempting to leave the area of the sit-down protest, six minutes before the expiration of a deadline set by MPD Major Rudolph.
The difference in how these two cases concluded is interesting.
My arrest affidavit, is ridiculous. It contains a perjury and weird circular logic.
“While detaining the def. it caused the group he was with to start yelling & cursing the police & def. was arrested & transported to 201 Poplar to keep the offense from continuing & for the safety of officers”.
I was arrested because other people were shouting at police after I was arrested. There was no violence, or threat of violence, directed at officers. The people were shouting “Let her go” and “It’s not 12:30” in response to Maureen’s arrest, not mine.
The officers who detained me had a conversation, of which I only understood part at the time, adrenalin being what it is. None of the officers, who were all from East Precinct, wanted to be the official arresting officer. So they called over one officer from Crump Precinct, but he declined, I think because he was concerned about the possible DR 501 penalty. Then they called on Officer Blake, who took over the arrest and locked me in his cruiser.
The prosecutor proffered time served on the bogus disorderly conduct beef, which my lawyers and I refused, and Officer Blake did not turn up for the preliminary hearing on September 19th. My case was dismissed and my record expunged.
It is my belief that Officer Blake never planned to attend the preliminary hearing.
Maureen Spain’s Case
Maureen was arrested during the same Memorial Day Greensward protest, on May 30th, just a few seconds after my arrest, but her outcome was very different.
Maureen, with her sons Cal and Gus, and two other Park Protectors, had been sitting down at the entrance to the Greensward overflow parking. During the course of the action, she had been harangued by MPD Lieutenant Ursula Jones for bringing her children. Although her kids had been supplied with bottled water from the start of the action, and a canopy had been placed over them, Jones maintained that the children were being abused in some way. The temperature recorded in the arrest affidavit was 86 degrees, and SCS sends students outdoors for recess at temperatures higher than this. Jones reported Maureen to the Department of Children’s Services. Maureen was therefore required to stay on the scene until DCS arrived, of which she was not informed.
At 12:10 PM, the MPD officer in charge of the scene, Major Rudolph, issued an ultimatum for the protesters to leave the area by 12:30 PM. At 12:23, Maureen and the other sitters rose to leave the area, to comply with this order. At 12:23 and 30 seconds, the officers who arrested me jumped the gun, and cuffed me. This commotion prompted five or six officers to jump on Maureen, who had stood up and was leaving.
This Commercial Appeal photograph shows Maureen being cuffed. The second officer from the left, the one with her hand on Maureen’s right torso, is Lieut. Jones. Her official arresting officer, Richard Rouse, is not in this picture. She was given into Rouse’s custody after being cuffed by the police in the photograph.
Richard Rouse has an interesting history. MPD sources say that Rouse was the official MPD liaison with the Park Protectors. An event called the “Cop Stop” had happened that morning, in the free part of the Greensward outside the Zoo barricades. Tables had been set up and doughnuts laid out. MPD brass had ordered all officers not to attend this function, except for Officer Rouse. He had presided over the doughnut table and later schmoozed with Park volunteers.
Here’s Officer Rouse with Park Protector Melisa Duke about forty minutes before Maureen was arrested. (Photo by author, public domain).
After Maureen was cuffed, Rouse intervened and he put her in his cruiser.
Maureen was charged with five counts: disorderly conduct; trespass; obstructing a highway or passageway; resisting arrest; and a child related complaint.
The prosecutor offered time served on one charge, the misdemeanor criminal trespass, with the others dropped. The criteria for resisting arrest are low, the slightest delay in sticking your hands behind you for the cuffs will do it, and there was video of Maureen being thrown to the ground and several cops jumping on her. Maureen was required to stay for the DCS officials to arrive, and she was required to leave by Major Rudolph’s ultimatum, so she had been in a no-win situation.
It seemed to Maureen that she could get a worse penalty than time served, and that some of the charges might be hard to defend at trial. She accepted the proffer, with the misdemeanor criminal trespass conviction and paid court costs of $350.
This demonstrates the danger of a cop making a frivolous arrest, intending not to turn up for the preliminary hearing. It starts a process where the prosecutor can intervene with a proffer. The defendant can’t know that the arresting officer won’t turn up, and he or she goes into the system.
Maureen had excellent, pro-bono legal representation by crack criminal defenders, John Marek and Andrew de Shazo, who also represented the author. John Marek is also a CLERB board member. It is easy to imagine situations where youthful defendants, represented by hard-pressed public defenders, might legitimately be told that time served might well end up as 30 days on each charge, if they went to court and lost. This would be true information and legitimate advice. The consequences of getting a criminal record and having to tick the box on job applications, or the difficulty of paying assessed court costs might not be understood by the callow defendant. We can’t conjecture how many defendants accepted proffers where the arresting officer did not intend to testify, or would have been occupationally shamed for his arrest affidavit.
In Maureen’s case, we can’t say for sure that Officer Rouse would have skipped the preliminary hearing, but, considering Officer Blake’s action and also that Rouse has been trying hard to be the ‘good cop’ with Greensward protectors all day, we think it is a definite possibility. It’s even possible that he intended to save Maureen from the tender mercies of Lieut. Jones. Officer Rouse was very conciliatory with Maureen during a subsequent conversation.
The Case of Connor Schilling’s DUI
Connor Schilling is the officer who killed Darrius Stewart in July 2015. According to the Commercial Appeal, the previous July, Schilling was arrested in De Soto County for DUI. “Based on MPD files, the arresting officer apparently failed to show up in court twice, leading to the dismissal.”
We infer that Schilling’s arresting officer intentionally did not appear, and consider this a likely example of police-to-police courtesy.
Schilling’s case is no longer in the De Soto criminal files so we believe the case record was expunged. An older Schilling file, where he was guilty of leaving the scene, has also been altered on De Soto records recently.
The Graceland Nine.
Of the eleven political arrests in Memphis in 2016, the other cases were the Graceland Nine. Here’s Dana Asbury’s account of her arrest. The charges were mostly misdemeanor criminal trespass and obstructing a highway or passageway.
There were a lot of complications in this case, including the civil rights lawsuit the Graceland Nine filed against the city. With seven of the defendants, the charges were negotiated away by the prosecutor prior to the preliminary hearing, possibly a strategic move to avoid testimony from the criminal cases being used in the civil lawsuit. The remaining two cases had immigration complications. They went to the preliminary hearing and the arresting officers did not turn up, so these cases were also dismissed.
In these cases, we think that, unless the arresting officers never planned to attend, their non-attendance was part of a cover-up to prevent irregularities in the arrests from being documented at trial.
Information about the Graceland Nine has apparently been purged from the Shelby Co. criminal records system.
Reginald Johnson’s CLERB Case, from Who will Watch the Watchers
“(Reginald) Johnson’s case also got media attention when in February he said police arrested him after they entered his house without permission and knocked him down, beat him in the face and back and maced him repeatedly.
Charges against Johnson were dismissed and his bail money was refunded, he said, after officers failed to appear in court.
Johnson’s incident was a case of “no good deed goes unpunished.” Johnson had called 9-1-1 when a man knocked on his door asking for help after having been shot. The sleeve of the man’s sweater was covered in blood.
However, after police arrived, three officers entered Johnson’s house and beat him and maced him, he said. A video from Johnson’s outdoor surveillance system showed that seven or more officers appeared at his house but paid little attention to the man who had been shot. Johnson said he believed police beat him because he had been critical of police for not actively investigating the murder of his son Oct. 31, 2014.
“They knocked me down, then beat me, maced me. One of them lifted up my head to mace me in the eyes again,” Johnson told the CLERB members.
Johnson said he is afraid of police now and will never get involved again with police, even if he sees a crime.
Johnson said he was hesitant to complain to CLERB about how he was treated for fear of further retaliation in the form of police not actively investigating his son’s murder.
“It looks like the police who showed up at your house had a different agenda, other than the man who had been shot,” said CLERB Chairman White after watching video which showed Johnson’s front yard, porch, front door and street scene. There was no video from inside the home, where Johnson said police attacked him without provocation.
“The police entered your house without asking permission or having any reason to go into your house,” said board member John Marek.
The injured man is shown talking with police in the front yard of Johnson’s home, although he entered Johnson’s home twice. Johnson said he wanted the man to stay outside to keep from bleeding on his carpet and also so paramedics could more easily find him.
Some board members asked to hear Johnson’s 9-1-1 call, but police failed to provide it in spite of CLERB’s requests, said CLERB investigator Arthur Robinson.
“I’m grateful that I had video to tell the truth, because, otherwise it might have just been my word against the police,” Johnson said after the meeting. Johnson said he had met with Director Rallings and other police administrators in an effort to identify and charge his son’s murderer.
“I have spent thousands of dollars to get enhanced video, which they could have done,” said Johnson. “The police have an idea of who did it,” but no charges have been filed.
Samuel Johnson was 21 years old when he was shot and killed on Halloween 2014. Johnson and others recently held a candlelight vigil to commemorate the anniversary of Samuel’s death.
Reginald Johnson worked 29 years for The Hershey Company in South Memphis but retired in order to work on his son’s case. He was to meet with homicide investigators Friday morning in hopes of making progress toward justice for his son. “ Quote from WatchTheWatchers, with thanks.
In summary, the MPD arresting officer made a potentially embarrassing case go away by not turning up for the preliminary hearing. But this case might otherwise have gone the same way as James Bolden’s case. The cops, rather than intervening with the prosecutors to make Reginald Johnson’s case go away, decided to let the prosecutor’s office make their play, exposing Reginald Johnson to the agonizing choice of rejecting the proffers or being ready to fight the case in court. Failing to appear for the preliminary hearing got the cops off the hook for wrongful arrest without having the details aired in open court.
James Bolden’s CLERB case
According to the CA: “In one of the excessive force cases, officers responded to a commercial alarm early in the morning to find truck driver James Bolden locking up the office where he works after a late haul. Suspecting him of burglary, officers were patting him down when he says they hurt his groin area, causing him to lower his arms. Officers then tackled him.”
He was charged with disorderly conduct and resisting arrest, and sustained injuries. He accepted the proffer of a year’s probation, which also cost him court costs and a misdemeanor record.
Mr Bolden was clear and forthright when he gave evidence at CLERB. It seemed, from the questions of the defense lawyers on the CLERB board that they would have advised going to the preliminary hearing. The CLERB board had access to the arrest affidavit, which is no longer available in Shelby County records. From the facts of the case, the cops were searching Bolden, probably ‘for officers safety’, when he moved his arms, prompting the ‘resisting’ beef. As mentioned before, resisting is hard to defend, but it is clear that Mr Bolden’s conduct did not meet the standards for disorderly conduct. Disorderly conduct is MPD’s go-to charge when they don’t have anything. In this case, it seems that the ‘resisting’ actually preceded the arrest, because it happened during the search.
My hunch: Bolden’s arresting officer, having a ridiculous arrest affidavit, may have been intending not to turn up for the preliminary hearing, as did Reginald Johnson’s. We’ll never know for sure. This is a prime example of what can happen when the prosecutor jumps in with a proffer in a wrongful arrest case.
Like with Maureen’s case, the existence of the resisting official detention add-on charge can make life complicated for a defense attorney.
This case had the opposite outcome to Reginald Johnson’s case, and James Bolden paid by his sentence for the cops’ trouble, without them ever having to testify.
We have seen a case where police may have intended at the time of the arrest not to turn up for the preliminary hearing, and, in fact, did not turn up.
We have seen two cases, Maureen Spain and James Bolden, where either the arresting officer might not have intended to turn up in court or where the arresting officers may have had an indefensible arrest affidavit, but the defendants cut their losses by taking a prosecutor’s proffer. Whether their officers planned to turn up or not, it is incontrovertible that if I had done the same as Maureen, and accepted the proffer of time served I would have ended up with a record. The same holds for Reginald Johnson’s case when compared with James Bolden’s.
The above suggests that, even with the best will in the world, an arresting officer doing a nuisance arrest can lose control of the case when the prosecutor steps in with a proffer.
I note that when I attempted to list the case records in the Shelby County on-line criminal justice records, none of the records of the defendants mentioned here, or another three Graceland defendants, were still available. I know, from two of the defendants, that they filed no expungement orders, and, in Mr Bolden’s case, expungement should not have been available. It looks like a concerted effort, involving Shelby and De Soto County officials, has been made to conceal these records. De Soto does not list Schilling’s records for the DUI, and they recently altered the records for an earlier ‘leaving the scene of an accident’ case.
What needs to change
The cultural belief among cops, that they have a right to a false arrest and not turning up in the preliminary hearing, needs to change.
From the defendant’s point of view, any arrest that gets to the preliminary hearing, without the arresting officer turning up and proving probable cause for the arrest , is an expensive and stressful process.
By default, any such arrest should be automatically assumed to be a false arrest. These cases should be dismissed by the prosecutor as soon as possible in the process, as occurred with the seven Graceland arrestees.
Incentives should be in place for officers to engage with the prosecutor’s office and acquaint them with any difficulties anticipated in demonstrating probable cause at the preliminary hearing.
The penalty for not turning up for a court date needs to be much stricter. DR 501 allows for illness etc. But the penalties do not match the offense.
The costs to a defendant of a wrongful arrest are high. Time off work for hearings and attorney meetings, defense costs and other expenses can easily amount to a week’s wages. Some people lose sleep over it. James Bolden spent $1500 on a lawyer and Reginald Johnson spent thousands on video enhancement.
A police should be given a week’s suspension for a first offense, escalating to four weeks for a fourth offense, and mandatory termination for the fifth offense. An automatic Internal Affairs case should be opened for each DR 501 offense and the defendant and his counsel interviewed by Internal Affairs.
In addition, if a cop turns up for a preliminary hearing but fails to prove probable cause, resulting in the case being dismissed, an Internal Affairs case should be opened. It is possible to envision legitimate defenses to this charge, including error or omission by another court officer, but a false arrest should be punished, if that is the outcome.
It needs to be made clear to prosecutors that knowledge of the cop’s inability to attend the preliminary hearing is exculpatory evidence which must immediately be presented to the defense. This information must be included with the proffer, unless the prosecutor dismisses the case.
It needs to be made clear to all concerned that a police not turning up for the preliminary, except for the police courtesy variation, is an admission that the arrest is wrongful, and that there is never a good and legal reason for not turning up. Inability to prove probable cause for the arrest must require immediate dismissal of the case, because continuing the process increases cost and harm to the defendant. A perversion of justice must be avoided or minimized.
The effect of this measure on police will be major. A police will know that he can’t do arbitrary arrests without consequences. He will know that if he can’t prove probable cause, he needs to have the prosecutor dismiss asap. He will know that extending this courtesy to a fellow officer will have a considerable cost to himself. He will take greater care in writing arrest affidavits which are logical and credible. Fewer falsely arrested defendants will end up with a record when they should have been set free earlier in the process.
Transparency in the court processes after an arrest is a prerequisite for community policing.
Fergus Nolan 5/21/2017