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Sticky Stats

A new MCC report indicts the local criminal justice system -- and a 1998 OMI investigation poses ongoing challenges for the Nagin administration.

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On Aug. 5, Police Superintendent Eddie Compass released this year's second quarter crime statistics, which showed double-digit reductions in both violent crime and property crimes. But like Richard Pennington and other chiefs before him, Compass based his statistics on crime reports that don't include many offenses that most concern residential neighborhoods, such as street-corner drug-dealing and domestic violence.

This week, the private Metropolitan Crime Commission (MCC) is expected to release a damning report of the local criminal justice system. The MCC study of arrests and prosecutions at New Orleans Criminal Court from July 1, 1999, through June 30, 2000, will show that only one out of every two individuals arrested on state offenses (both felonies and misdemeanors) are ever prosecuted, Gambit Weekly has learned. And only 38 percent of those arrested are ever convicted of an offense.

The report by Richard Brown, director of the MCC research department, will also emphasize that convictions are a better indication than arrests of quality policework. The goal of the report from the conservative, pro-law enforcement MCC is a familiar one -- a safer community through a more "efficient" criminal justice system, according to MCC president Raphael Goyeneche.

The customary denials, rebuttals and finger-pointing by state prosecutors, police and the courts are to be expected.

The MCC study will be a picture of police and prosecutorial activity that took place two years ago. However, the study may appear to contradict the New Orleans Police Department's indices for public safety -- the statistics on reported felonies that NOPD releases to the public every quarter.

On Aug. 5, newly sworn Police Superintendent Edwin Compass III released this year's second-quarter crime statistics, which showed double-digit reductions in both violent crime and property crimes. Like Richard Pennington and other chiefs before him, Compass will use the department's tally of eight major felonies reported to the FBI's Uniform Crime Reports (UCR) program as an indicator of police performance.

"The men and women of the NOPD are making strides in improving the quality of life for every person who lives and works in our community, and although I am pleased thus far, there is still much work to be done," Compass said of the NOPD's second quarter UCR stats.

Citizens may be forgiven if they do not feel safer. Critics say the UCR data does not include many of the offenses that concerns residential neighborhoods, such as street corner drug dealing and domestic violence. In fact, experts say the most accurate indicator of local crime is found in the annual federal National Victimization Survey.

Meanwhile, both Compass and Mayor Ray Nagin can expect to encounter lingering suspicions of the crime reports issued on watch. After the Enron/Arthur Andersen debacle and other Wall Street accounting scandals, the Nagin administration should expect the national clamor for improved accountability to extend to local crime figures, says Peter Scharf, co-director of the University of New Orleans Center for Society Law & Justice.

"In the stock market, people are wondering, 'Is my company really doing what it's reporting?' The same kind of thinking is going to hit law enforcement," Scharf says. "Crime statistics is the largest unaudited industry in the United States."

The U.S. Justice Department rarely ejects police departments from the UCR program for crime reporting irregularities, and then only for the most egregious offenses. Strict state laws and local ordinances govern the police classification of crimes which establish the charges an arrested suspect will face in court. Local prosecution of cops for false reporting of crime statistics or downgrading police reports is uncommon.

Over the years, State Police and national law enforcement organizations -- in which NOPD is a member -- have conducted random samplings of NOPD's massive crime statistics, based on thousands of annual calls for service. Such "friendly" reviews generally result in administrative recommendations -- not criminal prosecutions of fellow officers. "Zero tolerance" is not a common phrase when cops discuss crime statistics.

However, the old saw of "police cover-up" is not a fair assumption when it comes to classifications of some felony crimes. Differing philosophies of law enforcement come into play when a cop considers how to classify a crime. For example, if a tourist insists a purse was stolen, police officers may honestly differ on how to report the theft. Should the alleged incident be reported as a felony theft and recorded on the police district's UCR statistics? Or should the alleged incident be treated in non-felony classification of "lost or stolen"?

NOPD does not encourage its officers to engage in such internal debates at crime scenes. A chain-of-command dictates who determines classifications. However, police reports made on the street are subject to downgrading or upgrading. A maximum 10 percent revision of the UCR categories is generally allowed, according to law enforcement sources.

Police officers and supervisors alike take seminars on the particulars of identifying the elements of a UCR crime. For example, UCR does not include certain sex offenses such as sodomy. Former Police Superintendent Richard Pennington once told a city investigator in 1997: "At one time, we were classifying sodomy as 'rape.' And if you look here [in UCR reporting guidelines], sodomy is not a rape." Pennington said he consulted authorities in Washington and subsequently ordered a deputy chief to review 200 reported rapes, which resulted in 20 cases of sodomy being removed. The 10 percent change in NOPD statistics came at the department's "disadvantage" -- but Pennington said he instructed his commanders to "follow the letter of the law."

Nearly five years ago, the city Office of Municipal Investigation administered the last major vetting of NOPD crime statistics and reporting procedures. Looked at today, the 1998 OMI report illustrates how crime statistics can become embroiled in bureaucratic and political intrigue.

In 1996, in the wee hours of a summer night, New Orleans police caught burglary suspect Alvin Malveo inside a three-story office building on Canal Street in Mid-City. Two accomplices escaped. Malveo's associates left him to explain to arriving officers the reasons for the trio's nocturnal stacking of dozens of computers near an inside stairwell. Malveo confessed to the crime (albeit under a false name), records show.

Catching the burglar was relatively easy for police. He went to jail. Complications for NOPD arose after the police report of Malveo's arrest reached the district attorney's office.

Did Malveo and his associates commit one burglary inside the Canal Street building that night -- or more? NOPD had booked Malveo with one count of business burglary. But assistant district attorney George Bourgeois, a retired NOPD captain, observed that the burglars had looted seven offices inside the Canal Street building -- including two offices owned by the same business. Malveo was taken out of jail and re-booked with "multiple" counts of "business burglary," records show.

But that wasn't the end of the story. The detective assigned to the case later told the OMI investigator that a police lieutenant had instructed him to report the crime as a single burglary -- not multiple offenses. "It could have been seven burglaries with seven clearances, but I know for a fact that it was handled as one burglary and one clearance with COMSTAT," former Det. Ricky Bruce told the OMI agent in a 1997 taped statement.

COMSTAT (for "computerized statistics") is NOPD's celebrated crime analysis program. The brainchild of the late New York City crime consultant Jack Maple, COMSTAT was introduced in New Orleans by the Pennington administration. COMSTAT won praise for holding commanders accountable for increases in crime in their districts.

But the pressure to keep the crime down, reinforced by weekly COMSTAT meetings at police headquarters, also led to allegations of under-reported crimes in a few of the city's eight police districts ("The Numbers Game," Jan. 13, 1998). The alleged objective, our police sources said, was to keep the heat off the district commander. In the Malveo case, reporting the business burglary as a single event would reflect favorably on the district's COMSTAT figures.

The OMI investigation concluded the police lieutenant made an honest mistake. Both the district attorney's office and OMI reminded the officers in the case that state law takes precedent over UCR statistics.

Yet the fallout from the Mid-City burglary continued. By November 1997, the Malveo case had become part of a massive, wide-ranging (OMI) probe into allegations that the NOPD systematically downgraded crime reports and statistics, records show. That same month, Morial, Pennington, and local business people journeyed to New York City. The city leaders were on a mission to win recognition from the national business media for consistent double-digit reductions in violent crime rates since 1994 -- when New Orleans was the nation's per capita murder capital.

"I challenge the critics to put up or shut up," Morial said then. ("It's the Crime Rate, Stupid!" Nov. 11, 1997)

Just two months before that trip, Gambit Weekly has learned, OMI director Peter Munster sent a previously unpublished report to a top official in the Morial Administration. Munster said widespread "whispers" in NOPD warned of a "systematic attempt to fix the crime reports" to enhance the department's image. "These whispers have grown to a crescendo with members of the force actually coming into this office and making formal complaints," Munster stated in the report.

The OMI chief, a retired federal drug enforcement agent, had his own suspicions about NOPD's statistics. "If crime was dropping as fast as we are led to believe, we would assume calls for (police) assistance would be much lower," he wrote. "Yet we are still experiencing a growth in the number of calls for assistance."

Munster warned that OMI interviews and reviews of public records showed an outside audit was warranted. "Something must be done to rectify the situation. If we lose the public trust once more, we will be faced with a situation in which it will be harder for all us city employees to function," Munster wrote, apparently referring to administration successes at police reform.

"We need an audit into what is happening with the statistics," he continued. "We should consider hiring someone from outside of city government to monitor the situation."

In an obvious reference to COMSTAT, Munster added: "Perhaps officers should be given a specific time to reduce or affect crime rather than reporting the results every week. This is the same pressure cooker which wrecked American business 20 years ago."

By the spring of 1998, all hell had broken loose at City Hall. On April 27, the seven-month OMI investigation of both the reliability of police crime statistics and separate allegations of ethical violations by top cops reached a dramatic conclusion.

The OMI report became the catalyst for a very public fight involving top officials of Morial's Administration: Chief Administrative Officer Marlin Gusman, Munster and Pennington. The 1998 OMI probe found insufficient "significant evidence" to prove allegations that police brass conducted "an orchestrated conspiracy to alter the crime statistics to produce an impression of a significant reduction of crime in New Orleans." Only one police supervisor was found in "possible violation" of NOPD regulations for admittedly changing a police report on the theft of a purse to the lower category of "loss or stolen."

OMI Senior Special Agent Raymond Burkart's report also concluded that only one police lieutenant could be in "possible violation" of NOPD regulations for re-classifying a purse "stolen" from the Convention Center. The lieutenant had downgraded the police report from a theft to a "lost or stolen" classification.

However, the OMI report added a qualifier to its conclusion. Based on an analysis of records approved by the lieutenant and the supervisor's testimony in the case, the OMI report concluded: "[I]t seems that the re-classifying of incidents by [the lieutenant] is following the philosophy/methods he espouses that was indicative in the original identified offense." In short, the lieutenant candidly admitted he changed the police report based on his own crime-fighting philosophy. However, he acknowledged he should have followed his captain's instruction to upgrade the report to a theft.

Finally, the OMI report listed nine recommendations for "corrective measures" to improve the accuracy of NOPD crime data released to the public. But Pennington and Gusman were furious over separate conclusions in the OMI report that the Chief might have violated state ethics laws by accepting a free cell phone from an NOPD contractor (Pennington was never charged with any wrongdoing). Instead of challenging the criticisms in the report, Pennington made a personal attack on Burkart, a retired NOPD sergeant who had once served in the department's research and planning section.

Gusman, who oversaw the watchdog agency, threatened to consult with the City Attorney's Office on how to "investigate the investigator" for alleged bias. On May 1, 1998 -- four days after the official release of the OMI investigative report -- director Peter Munster and Burkart filed for "whistle-blower" protection with civil service ("The Secret Files of Peter Munster," Aug. 6, 2002). Munster died in a traffic accident in July 1998.

The public uproar over the Chief's cell phone overshadowed OMI's relatively banal administrative recommendations for "corrective" action to ensure more accurate police reports and statistics. Neither Gusman, who was elected to the City Council, nor Pennington, who was appointed police chief of Atlanta after losing the March election for mayor of New Orleans, ever offered evidence to support their claims against Burkart.

Both OMI and its work are experiencing a resurrection of sorts under the Nagin administration. OMI agent Dan Henderson has been called back from his recent retirement to complete a much-anticipated city sales tax probe. The veteran investigator will join a small slew of federal, state and NOPD investigators who have been interviewing city employees and poring over documents since Nagin announced his "war against municipal corruption" on July 22.

Meanwhile, veteran observers say the Nagin Administration might also benefit from a review of long-dormant OMI recommendations for administrative remedies at various city departments. The agency's old 95-page investigative report on the reliability of NOPD statistics contains at least one arguably prescient recommendation for "corrective action." Citing time and manpower constraints, Burkart concluded his seven-month investigation of OMI Case No. 97-046B-04: "[T] here is indeed warranted a significant and encompassing audit of the records of the Police Department."

Burkart recommended a joint audit by the NOPD Inspections Division in conjunction with university faculty in various schools of mathematics, computer science and public administration. The joint audit would be conducted in lieu of an accounting by the state. Burkart's report also noted the problem of financial incentives for district commanders who participate in COMSTAT.

"Each district commander is given an increased salary (over regular non-command captains)," the agent wrote. "... The possibility of the loss of the stipend becomes more of a driving force to use methods under his/her control to achieve acceptable performance. Of course the avenue for management of the Department to circumvent this process, is an accurate, consistent and constant documented audit of the entire reporting process along with the appropriate response to systematic violations regarding mis-classifying ... of offenses."

The report, dated April 27, 1998, noted that such an accounting system did not exist for NOPD.

Last week, UNO professor Scharf echoed Burkart's recommendations. It's the absence of "accounting rules" that allows for "slippage" in police reporting or misclassification of crimes, Scharf says.

Councilman Gusman now chairs a task force -- appointed by Morial last year -- that has recommended an "independent monitor" to review all statistics by NOPD and OMI. Mayor Nagin has posted the committee's report on the official city Web site (www.New-Orleans.la.us/home). Public hearings on the report will be Thursday, Aug. 15, and Friday, Aug. 16.

Meanwhile, Scharf says that Compass should revisit the department's financial incentives for district commanders who participate in COMSTAT. "When you create incentives to reduce crime, your police department becomes very much like the stock market," Scharf says. "CFOs are fired if they don't show a profit in a quarter. Patrol sergeants are not completely immune from those kinds of pressures."

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