Silliman's Papers

Special Report: Inside the Clayton County District Attorney's Office
Backlog of pending cases clogs up justice system

By Daniel Silliman
Clayton News Daily, Oct. 29, 2007

Kenneth Jerome Alexander has been under investigation on child molestation charges for more than three years -- technically.

The Georgia Bureau of Investigation finished investigating the 45-year-old former police officer in 2004. Warrants were applied for and received, the preliminary case was presented to a magistrate judge and accepted, and the case was sent to the Clayton County District Attorney's office in March of that year.

But it hasn't moved since then.

More than three years later, the file is still there. The district attorney's office has not dismissed the charges against Alexander, and it hasn't brought them to a grand jury for indictment.

According to the GBI, the case is considered "under open investigation" until the district attorney moves on it.

District Attorney Jewel Scott said the case is "peculiar," but, according to records obtained by the Clayton News Daily, Alexander's case is not all that unusual. It is one of more than 750.

Those cases, including aggravated assault, child molestation, drug possession and rape, have apparently languished in the district attorney's office for at least a year. Some for as long as seven years.

The records show pending cases dating back to 2000, when Bob Keller was re-elected to the district attorney's office.

Seven cases have been in the district attorney's office since then. There are eight more that have been waiting to be indicted or dismissed since 2001. The number of cases waiting for action has increased dramatically since 2005, when Scott took office.

There are more than 200 pending cases which were first brought to the office in 2005, and more than 450, open and unindicted, cases between Jan. 1 and the end of September 2006.

"You've got cases that are sitting there too long," said Leon Hicks, a veteran defense lawyer with an office in Jonesboro. "I've got cases where nothing's been done for six months, eight months, 10 months, a year, and I ask, 'Where's this at?' 'Well, it hasn't been indicted yet.' Either do it or don't, but do something, that's my attitude."

There are no records now available that show the backlog of unindicted cases when Bob Keller was district attorney. Even so, Hicks and attorney, Joe Roberto, both believe the situation got worse under Scott.

Reality or misconception?

Senior Assistant District Attorney Todd Naugle, however, said that's a misperception. Naugle was a senior assistant district attorney in Keller's administration and has continued in that role with Scott, since she beat Keller in the 2004 election. He said the case backlog isn't a new problem.

"That number has probably been consistent for years," he said. "The victims move and you can't find them. You wait for reports from the police department. There's a backlog at the crime lab ... There's always been a backlog of cases."

The two long-time lawyers, however, say there was a significant change in 2005, when Scott took office. Cases that used to move quickly now languish in limbo for years, they said, and each assistant district attorney has stacks of pending cases which have been "left on the floor."

"You can ask anybody who was there for that regime and this one -- it's taking longer," Hicks said. "If you've got a backlog of cases that haven't been indicted, there has to be a reason."

Roberto said Scott, who had no courtroom experience when she was elected the county's top prosecutor, had a "disastrous" learning curve. He attributes the growing backlog to a number of staffing decisions and management-structure changes.

"It used to be that the number-one and number-two people in the district attorney's office attended the probable cause hearings," Roberto said. "So they knew what was coming into the office. I could walk up to [Bob Keller] and say, 'Hey Bob, I've got such and such a case, what do you think about a bond?' He would deal with it on the front end, instead of letting it go on forever."

Hicks agreed, saying defense attorneys used to call assistant district attorneys and work out deals over the phone. Today, he said, if he approaches a prosecutor, he or she declines to negotiate, deferring to superiors.

Under Scott, Roberto said, the assistant district attorneys, who attend the probable cause hearings at the front-end of the court process, don't have the authority to negotiate plea deals and bonds. Everything has to be checked and approved by Scott, or one of the top two assistants.

Because cases can't be dealt with quickly, he said, they go through a series of hearings and calendar assignments, with paperwork accumulating and the system falling even further behind.

There have been no policy changes, however, in the authority given to the assistant prosecutors, Naugle said, and he argues that the procedures haven't changed, either.

"I'm the one who was calling the shots before, and I'm still doing it the same way," Naugle said. "I do the same thing. I haven't changed how I go about giving them authority and autonomy with the cases. There may be a perception of that, but I don't see the reality."

Smaller cases gunk up the works

Both Roberto and Hicks said the district attorney's office, under Scott, has not successfully separated the smaller, more negotiable cases from the larger ones, which require major investigation and attention. Cases that could be dealt with in a few minutes of negotiation, they said, are among those that have remained unindicted for years.

Court records show unindicted, yet undismissed cases involving driving with a suspended license, loitering, and possession of less than an ounce of marijuana while driving.

"The way you clean your desk off," Hicks said, "is you take the cases that are easy and quick, and you take care of them. You get rid of all the chaff and then you have that wheat."

Naugle maintains the backlog isn't made up of the "smaller cases." A smaller case that is difficult to prosecute -- such as a criminal trespassing charge, in which the business making the accusation no longer exists, leaving no witnesses to the alleged crime -- can be dismissed.

It's the bigger cases, the more serious ones, which can't be dismissed even years after the incident. Though some of the cases coming into the district attorney's office are difficult to prosecute, and may take years to investigate and bring to trial, the office can't dismiss them, because the charges are too serious, Naugle said.

"If it's a murder or an armed robbery, and there's a witness who has disappeared, we're not going to close that case," the senior prosecutor said. "The citizens of Clayton County are entitled to have these cases prosecuted. Even though the cases are old and witnesses may be hard to find, the citizens are entitled to have them prosecuted."

Though the office is dealing with the cases in the same way it always has, according to Naugle, he does admit that it has gotten harder. He also admits that prosecutions are more likely to be delayed than they used to be. Naugle and Scott blame that on societal changes.

"The major difference," Naugle said, "is that, in 2004, the crime rate started taking off. We were dealing with about 7,000 warrants around that time. Now, we do 10,000 a year."

It is not simply an increase in cases that is clogging the wheels of justice, though, according to the district attorney's office. More and more cases involve victims and witnesses who are transient. Many of the pending cases are on hold because investigators are trying to find the witnesses or the victims, who have moved since the crime occurred.

"It has become increasingly difficult for us to track our victims, because we have such a transient population," Scott said.

Some suggest that tracking victims becomes even more difficult the longer the case is delayed. The longer it takes to bring a case to trial, they say, the harder it will be to successfully prosecute it. Victims and witnesses, for example, often lose confidence that prosecutors are actually going to do anything, and move on with their lives.

Memory fades, testimony changes

"When you have something that's four year's old, people's recollections change," Hicks said. "People remember it differently. Their perspectives change. Witnesses move away. Witnesses die."

Even Naugle said cases are significantly harder to prosecute after about a year, or a year and a half.

Whatever the explanation for the hundreds of unindicted cases, the practical results are a clogged-up prosecution process and a large number of people, who are unable to argue their cases, so they can get closure.

"It overly taxes the [district attorney's] staff," Roberto said. "They've got a bunch of status reports and a whole bunch of calendar hearings that shouldn't be there ... You've also got a lot of little guys with these indictments pending forever. They've got clouds over their heads. The indictments could come down at anytime."

Hicks said defendants, facing the possibility of an indictment, can't do anything but wait. They can't petition for a speedy trial, because they have not been officially charged, and are only under perpetual "ongoing investigation."

Defense attorneys can pester prosecutors to do something with a case, but that's the extent of their recourse. Whatever plans a defendant makes, he has to take the ever-pending indictment into consideration.

Kenneth Alexander's livelihood, like that of the others with pending cases, could face daunting challenges because of his situation. He can not work as a police officer for as long as the case is pending. Even though it isn't ready to go to trial, he is still under suspicion.

Although, under our legal system, he is innocent until proven guilty, even a cursory background check would raise legitimate questions for anyone interested in hiring the 45-year-old former cop.

At the same time, the two teens, who accused him of molesting them, are now nearing their 18th birthdays. They have spent the majority of their high school years knowing that Alexander is a free man, and, perhaps, wondering if he would ever be prosecuted.

When asked about a potential indictment of Alexander, all Scott can promise is that it will happen "some time soon."

Though her office disputes the cause of the backlog, Scott has argued that the solution involves more funding. She has annually appealed for more money from the Clayton County Commission. Currently, according to information from the county, the district attorney's office -- with the departmental goal stated as, "Prosecute all defendants in a timely manner while keeping budgetary costs at a minimum" -- has 62 positions and a budget of about $3 million.

"We need more, but we appreciate the county's limited resources," Naugle said. "Our staff has not increased proportionally [to the growth in the crime rate], to do what we need to do to keep up."

Scott has lobbied Commission Chairman Eldrin Bell for increased funding to pay for additional investigators and prosecutors. Bell, however, has said a budget increase would require a tax hike, and he said he will not raise taxes to give the district attorney's office more money.

Bell said he believes Scott has a record of mismanaging money and staff, which he said is made clear by the number of undismissed and unindicted cases.

Action being taken

Naugle said the office has already made changes, though, in response to the more than 750 pending cases, and he believes those adjustments will reduce that number in the future.

The office has designated some of its investigators as a "cold case unit." Currently working on the more than 450 cases from 2006, those investigators review each case, determining why it wasn't worked when it came into the office and attempting to move forward on it.

The office also recently added a case-evaluation system, in which a senior investigator categorizes the difficulty in prosecuting a case as the file comes into the office, Naugle said.

Though critical of the district attorney, Roberto also thinks that things are getting better in the prosecutor's office. He said he believes the office has made the necessary changes to staff and procedures, and Scott has passed through the learning curve.

Roberto said he would support Scott, in her upcoming race for a second term, because, he said, she has grown into the position.

"She's got a pretty good house now, but that painful period of learning on the job, and staffing mistakes, just kind of gunked up the system," he said. "She's running a pretty tight ship, but she's still bailing water."