DISMISSED BEFORE REACHING COURT, FLAWED ARRESTS RISE IN NEW YORK

Dawad Joseph, a 16-year-old Staten Island high school sophomore, was
walking to his mother's office with four friends one afternoon in May 1997
when the young men found themselves in the middle of a police drug sweep.
Joseph was arrested on charges of possessing and selling drugs, even though
police records show no drugs were found on him. When he asked what he had
done wrong, he said, one officer told him, "Don't worry about it. Don't ask
any questions." Taken to the local station house with about 10 other
people, he said, he was strip-searched and put in a holding cell for the
night.

But the next morning, when he was taken to the County Courthouse for
arraignment, he was abruptly freed after a prosecutor reviewed his arrest
and decided it would not stand up in court. Last year, the city paid
Joseph's family $12,000 to settle a lawsuit for false arrest, which city
lawyers said stemmed from a case of mistaken identity.

Though crime in the city has ebbed to historic lows, the New York City
police arrested more people than ever last year. The inevitable result,
courthouse lawyers and some former prosecutors say, is a surge in the
number of flawed arrests. More and more of those arrested, like Joseph,
were jailed and released without ever having been formally charged with a
crime.

Last year, prosecutors tossed out 18,000 of the 345,000 arrests made in the
city even before a judge reviewed the charges, more than double the number
of four years before.

The rate of cases rejected by prosecutors grew last year by 41 percent in
the Bronx and 23 percent in Manhattan. In Brooklyn, 1 in 13 arrests was
dismissed before arraignment last year, double the rate of 1997. Citywide,
50 people a day are processed through the booking system and released
because prosecutors reject the charges against them, often after they have
spent hours or overnight in packed holding cells.

"You have less crime and more junk," said Eugene O'Donnell, a prosecutor in
the Brooklyn District Attorney's office until 1996 and now a professor at
John Jay College College of Criminal Justice.

The police contend that the quality of their arrests has not declined and
that prosecutors are failing to prosecute valid arrests. But beyond the
cases that prosecutors decline to prosecute -- "D.P.s" -- there are other
indications of a loosening relationship between arrests and findings of
guilt.

More felony charges are being dismissed or reduced to lesser charges, with
only about one in five felony arrests in 1998 resulting in a felony
conviction, down 23 percent from 1993.

Some prosecutors are openly critical of the quality of the Police
Department's felony arrests. More than a third of felony arrests were
reduced before arraignment last year, and a quarter more were later
dismissed, both figures up substantially from 1993.

"With the crime rate going down 40 or 50 percent, what we're noticing is a
decline in the quality of felony arrests," said James Quinn, executive
assistant district attorney in Queens.

Mike Vecchione, first assistant district attorney in Brooklyn, said of his
office's stricter felony screening policy: "We save criminal justice
resources by doing the aggressive screening. It clears calendars and moves
legitimate cases -- by that I mean the true felonies -- up, and we move
quicker on them."

The police, however, insist there has been no decline in the quality of
felony arrests. "If we're making felony arrests, they need to be made,"
Deputy Commissioner Edward T. Norris said.

All told, more than 140,000 of the 350,000 cases disposed of in court last
year ended in a dismissal, a 60 percent increase in dismissals over 1993.

The greatest increase has come in the use of a legal device called
adjournment in contemplation of dismissal, or A.C.D. Under an A.C.D.,
charges against defendants are dismissed as long as they stay out of
trouble, typically for six months.

The legal device was created to keep court dockets and jails from becoming
overcrowded, while giving minor offenders a chance at a clean slate. Police
officials say they do not like the adjournments, but their use has
skyrocketed during the Giuliani administration -- more than 85,000 were
handed out last year, up from 35,000 in 1993.

Prosecutors, who say the criminal justice system lacks the resources to
seek to convict all the people arrested for low-level crimes, say an
adjournment anticipating dismissal is a legitimate disposition for first
offenders facing minor charges.

The waves of people arrested but never found to have broken the law largely
roll beneath the public consciousness. Occasionally, a case rises to the
surface, like the mistaken arrest of Alton Fitzgerald White, an actor
starring in the Broadway musical "Ragtime," by officers searching for drug
dealers last month.

But as crime declines and arrests soar, an increase in thrown-out arrests
can be an indication of strain, experts say.

"The question has to be asked about why they are turning away so many more
people in the courts," said William J. Bratton, the former Police
Commissioner, who is increasingly critical of the assertive policing
policies he helped put in place five years ago. "If an increasing number of
arrests are not leading to meaningful prosecution, that's something you
have to watch for in terms of managing the department."

Prosecutors say refusals to prosecute can indicate the quality of arrests.

"It's a test of the evidence," Vecchione of Brooklyn said. "The arrest that
comes in is lacking in some way -- the evidence is not sufficient to
support the charge, or the search is a bad search and therefore would not
withstand scrutiny."

His opinion was echoed by Prof. James Cohen of Fordham Law School, who
operates a legal clinic there. "The prosecutor will do a lot of stretching
to try to accommodate the police," he said. "When they D.P. a case, it's
because it stinks."

Practice varies widely among the five boroughs, but prosecutors' own counts
show a big jump last year. In the Bronx, District Attorney Robert T.
Johnson's office declined to prosecute 6,175 cases last year, up from 3,709
in 1997. In Manhattan, District Attorney Robert M. Morgenthau's lawyers
turned down 3,608 arrests, up from 2,705 in 1997.

In Brooklyn, where District Attorney Charles J. Hynes has been aggressive
in screening police arrests, refusals to prosecute doubled in one year, to
7,365 in 1998, after he instituted a new policy of dismissing cases, but
allowing officers to refile if they get more evidence.

In Queens, the "decline to prosecute" rate of District Attorney Richard A.
Brown's staff is lower than in the other boroughs and actually declined in
1998. But law enforcement in Queens is substantially less intensive than in
Manhattan, the Bronx or Brooklyn.

As for Staten Island, prosecutors said that records from previous years had
been damaged in a fire, so comparisons could not be made.

For the thousands who are D.P.'ed, it can be a lengthy and harrowing
experience.

"It was horrible," said Oona Chatterjee, a New York University Law School
graduate who was arrested on a fall day last year. "It was exhausting, and
it was humiliating."

Ms. Chatterjee, who runs a neighborhood legal clinic in Bushwick, spent 15
hours in a Brooklyn precinct house handcuffed to the bars of a holding
cell. Trying to intervene for residents of an apartment building who were
watching an altercation between the police and a neighborhood resident, she
was arrested and taken to the 83d Precinct station.

She was released, with no charges filed, after 22 hours in custody. The
city paid a $45,000 settlement to Ms. Chatterjee last month without
contesting her false-arrest lawsuit.

"We settled the case because she's a very credible plaintiff," said Lorna
Bade Goodman, a lawyer with the city. "It would have ended up in a lying
contest between a well-spoken law student and a police officer."

A New York Times computer study of refusals to prosecute in Manhattan
during the first six weeks of 1999 suggest that many of the cases come from
minority neighborhoods, which have been the focus of much of the stepped-up
enforcement activity of the city police and the source of complaints of
police harassment. In the two police precincts that make up Washington
Heights, Inwood and northern Harlem, prosecutors threw out 120 of the 2,035
arrests -- a rate, 5.9 percent, that is about twice as high as in the rest
of Manhattan during that period.

About half the cases that were thrown out in that area were drug arrests
made under the Northern Manhattan Initiative, a multi-agency drug task
force organized by Police Commissioner Howard Safir.

And in fact, throughout the borough, drug cases were more likely than other
kinds to be thrown out, according to The Times's review. About one in four
Manhattan arrests in recent years have been for non-marijuana drug charges.
But drug cases made up nearly 40 percent of the cases thrown out by the
prosecutors in the first six weeks of 1999.

The police say they cannot explain the increase in refusals to prosecute.
Deputy Commissioner Norris said the department, which regularly reviews
arrest and prosecution records, saw no drop in the quality of arrests its
40,000 officers made, and no pattern of poorer quality of arrests in
minority areas.

"We have so many things in place to make sure the arrest is bona fide,"
Norris said. "We know that putting handcuffs on them is not the end of the
job," he added. "The guy's got to go to prison, too."

Department policy continues to emphasize a high rate of arrests. Last year,
the police made a record 345,130 arrests in New York City, according to the
State Division of Criminal Justice Services. Norris noted that it was the
first year that arrests outnumbered reported crimes, which fell to 326,962.

This year, arrests are running 10 percent below last year's levels -- a
trend that police officials fear may reflect less aggressive enforcement in
the wake of public criticism over the shooting of Amadou Diallo. But D.P.'s
are down as well: police records, which do not entirely agree with
prosecutors', show a decline through Aug. 1 that, if it continues, will
mean a 12 percent drop in D.P. rates by year's end.

Prosecutors acknowledge that more cases are being declined than in the
past, but say they are not responsible for the rise, either.

"Standards in the Bronx have not changed," said Steven Reed, a spokesman
for Johnson. "While there is an increase in the number of cases we decline
to prosecute, the reasons are varied and not tracked."

James M. Kindler, chief assistant district attorney in Manhattan, played
down the increase in decisions not to prosecute. "While there is a rise in
D.P.'s, they are still a very small percentage of the total number" of
arrests, he said.

But the prosecutors concede they have had difficulty coping with the flood
of arrests, and have resorted to dismissing many of them, including
felonies, under the rubric of the A.C.D., or adjournment in contemplation
of dismissal.

"The system just doesn't have the hammer to handle those cases as it does
for something like murder," Quinn of Queens said. "You have all these lower
level cases coming in and they have to be dealt with to make room for the
next group."

But O'Donnell, the former prosecutor, said the adjournment in contemplation
of dismissal can hide a multitude of sins.

"The D.A. doesn't have to drop the charges, which is a stigma on the Police
Department," he said. "The judge -- and I've seen judges begging guys to
take an A.C.D. -- gets rid of a junk case without having to go through
motions." And defendants get to walk -- an enticing alternative for both
guilty and innocent.

Such a disposition can also forestall lawsuits against the city, O'Donnell
said. Nevertheless, the rate of false-arrest and malicious-prosecution
claims has increased about 8 percent during the Giuliani administration,
compared with the five years before. And settlements are up -- the median
amount awarded to false-arrest plaintiffs was $12,500 during the first four
months of 1999, up from $8,000 last year.

The police say they do not consider an adjournment in contemplation of
dismissal an appropriate conclusion to their efforts on the street. "We'd
like to see them serve time," Norris said.

He added that despite the rise in D.P.'s and A.C.D.'s, police officials had
no intention of backing off their push for high arrest totals.

"We like to hold up our end of the criminal justice system," Norris said.
"We're still going to arrest people. We believe this is the way to go."