Torpy at Large: Fulton’s courts and the revolving door of complaint

They include whether some suspects charged with violent crimes can get bond.

This issue was a lot easier, I told the judge, when it was simply about lenient and clueless magistrates not doing their jobs and letting criminals back on the street.

I visited Fulton County Superior Court Chief Judge Robert McBurney this week to talk about the turnstile that is Fulton's justice system because, well, everybody else is talking about it.

Last week, Feb. 28, Atlanta Police Chief Erika Shields faced an auditorium packed with angry Buckhead residents and apologized for her department falling short. Then she discussed where the system is broken — with judges, the district attorney and even in her house.

“When we saw what was going on, it was a failure and it was not OK,” she told the crowd, referring to a property crime wave tormenting north Atlanta.

She noted that those in the audience "represent power and influence" in the city and later added, "You need to focus your energy on the district attorney and the judges. We're the easy one. We'll stand here and take the beating."

For that, she got a standing ovation from an audience appreciative of her playing piñata.

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Not to be outdone, Fulton DA Paul Howard, who is now on his fourth police chief and fourth mayor, called a press conference the next day to request that Superior Court judges, who are elected, hear more bond cases instead of magistrate judges, who are appointed.

The notion is Superior Court judges will be more beholden to the public and more cautious in letting out defendants on low bonds. (By the way, it is rare for a sitting judge to lose an election. It has happened perhaps two or three times in metro Atlanta in my 29 years here.)

“We’ve reached maybe a tipping point in our community,” Howard said. “I’m hoping people might pay attention.”

Fulton County District Attorney Paul L. Howard Jr. speaks with members of the media during a news conference at the Fulton County Courthouse in Atlanta on March 1, 2019. 

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Last year, Superior Court judges decided that they, not magistrates, would conduct bond hearings for serious crimes such as murder. This came about after a long, public feud in which the Atlanta mayor, the Atlanta Police Department and Howard tore into the judiciary for repeat offenders plying their trade seemingly unabated.

Last week, Howard said magistrates generally should not hear bond requests in cases such as armed robbery or kidnapping, or when a defendant has a prior felony or is on probation. However, just about everyone arrested in Fulton seems to have a prior felony or is on probation, so judges will get a lot busier if they buy what the DA is selling.

A decade ago, Fulton moved to a "rocket docket," with magistrates clearing out nonviolent felony cases that were piling up. But those crimes are real bothersome to communities. And sometimes "nonviolent" criminals who get released go out and do something horrible, such as the 2010 killing of a state trooper. Then there's hell to pay.

Judges have complained that Howard's office overcharges cases. And they say the constant turnover in his office means inexperienced assistant district attorneys won't take a plea bargain for fear of getting in trouble with the boss. This clogs up the docket, and the jail, even more.

Fulton County Chief Judge Robert McBurney at the Fulton County Courthouse on April 23, 2018. 

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The problem is the sheer volume of cases that pass through the court month after month. Dockets get clogged for many reasons. Some judges don’t move cases fast enough. Hard-sentencing judges see plea offers dry up and their caseloads back up until, ultimately, they ease up — returning to what some call “the Fulton norm.”

That norm is seen in the court records of some recently arrested offenders who were routinely sentenced to short prison terms and some probation even while already serving another probation.

Frustrated cops complain about re-arresting the same ne’er-do-wells who smile and say, “See you later.” And they do, sometimes just a couple of days later on the streets.

One defendant, Nicholas Knox, posted a smiling photo of himself online after getting released last month on charges of aggravated stalking, Howard said.

“Life is a game and I got the cheat code,” Knox wrote.

But as you peel away layers of the stinky onion, it is clear that fault can be spread around even more.

DAs and judges talk about cops failing to show at first-appearance or bond hearings or at grand juries. This causes cases to be postponed or even tossed. In 2013, the AJC ran a story that said magistrates threw out 1,800 cases in a three-year span because of this. Defendants are also bonded out because the cop didn't show.

APD officers failed to show up 2,340 times last year to testify at a grand jury, Howard’s office said. Yes, that’s 2,340.

Chief Shields, seeming to see this one coming last week, told the Buckhead crowd, “If cops don’t show up, I’ll own it.”

Atlanta Police Chief Erika Shields at the Georgia World Congress Center in Atlanta on January 30, 2019. 

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Police officials told me the APD is working “to identify any officer who did not have an excused absence and issue the appropriate discipline.”

But when you’re inside a Fulton courtroom, you can see why cops’ attendance wavers. Some, who’ve been up all night on the midnight shift, sit for hours getting comp time, waiting for Case No. 52 on the docket, a case that may or may not be heard.

Judge McBurney, who once worked as a prosecutor under Howard, knows the deal. In fact, we quoted him as a young prosecutor in 2002 while writing about a murder case that was dragging.

McBurney said he will sit on the "Repeat Offender Commission," which will start up again soon. This is a group of law enforcement officials who have met through the years to try to do something about the revolving door. Boxing gloves and head gear may be needed this time.

McBurney said judges need to be made aware of defendants’ juvenile records when hearing a bond. Often, he said, they are “left in the dark” when making that decision because of protections afforded to those who are underage.

“I would like to know what has been going on during the last year of your life,” he said. “If the last year is a rash of trouble, then I’m less persuaded to let him go home with his mom.”

McBurney said police and prosecutors must be there in court giving judges more information.

“Unlike mutual funds,” he said, “I believe past performance is a good indicator of future performance. And we ignore it at our peril. I’m not saying judges ignore it. I think we need to be more thoughtful of how we weigh it.”