DISTRICT COURT OF MARYLAND. August 30,2012. The Honorable Michael Busch Speaker, Maryland House of Delegates State House, H-101

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1 BEN C. CLYBURN Chiefludge The Honorable Thomas V. "Mike" Miller President, Maryland State Senate State House, H-107 Annapolis, Maryland DISTRICT COURT OF MARYLAND August 30,2012 The Honorable Michael Busch Speaker, Maryland House of Delegates State House, H-101 Annapolis, Maryland Courts of Appeal Building Annapolis, Maryland Tel: (410) Fax: (410) The Honorable Joseph Vallario, Jr. Chair, House Judiciary Committee House Office Building, Room Bladen Street Annapolis, Maryland The Honorable Brian Frosh Chair, Senate Judicial Proceedings Committee Miller Senate Office Building, 2 East Wing 11 Bladen Street Annapolis, Maryland Re: Chapter 4641H0use Bill Washington County - GPS Tracking System Pilot Program and Chapter 429/House Bill Prince George's County - GPS Tracking System Pilot Program for Offenders Gentlemen: As directed in Chapter 464, House Bill 1336, and Chapter 429, House Bill 665 of the 2010 Legislative Session, enclosed is the report evaluating the global positioning satellite CGPS) tracking system pilot program established in Washington County and Prince George's County. As you will see in Washington County, there were only two cases where judges found the need to impose the GPS restrictions. Few cases presented themselves both factually and procedurally that gave the Court an appropriate opportunity to impose GPS restrictions. This report outlines these procedural problems and also suggests possible solutions. In Prince George's County, there were also several impediments to a prompt and successful implementation of the pilot as is outlined in the report. However, the pilot has been initiated and is underway. Thank you. Sincerely, Enclosure fl~ctjd Ben C Clyburn Chief Judge of the District Court cc: Judicial Cabinet Kelley O'Connor

2 DISTRICT COURT OF MARYLAND OLIVER JOHN CEJKA JR. District Eleven Administrative Judge 100 West Patrick Street Frederick, Maryland September 1, 2012 Honorable Ben C Clyburn Chief, District Court of Maryland 361 Rowe Boulevard Annapolis, Maryland Re: House Bi Washington County- GPS Tracking System Pilot Program Chief Judge Clyburn: The Statute. Chapter 464, House Bill 1336, ofthe 2010 Legislative Session amended Criminal Procedure Article (c) (the "Statute") to require Washington County to implement a global positioning satellite (GPS) tracking system pilot program that authorized the District Court for Washington County (the "Court"), as a condition of a defendant's probation for a conviction under of the Family Law Article (violating a temporary or final domestic violence protective order ("DVPO")), to order that the defendant be supervised by means of active electronic monitoringfor the duration of the DVPO. The Court could also order that the defendant be responsible for paying the fee for active electronic monitoring established by the county, although a defendant might be exempted wholly or partially if the Court determined that the defendant could not afford to pay the fee. Implementation. Incorporated by reference herein as Exhibit A are the Quarterly GPS Reports for the period January 1, 2011 through August 3, 2012, pertaining to imposing GPS tracking, in pertinent cases, in Washington County. There were two cases judges found the need to impose the Statute's GPS restriction. In many cases, however, given the limited applicability of the Statute, there were very few instances which both factually and procedurally presented the Court with an appropriate opportunity to apply the statute. At the outset, the Court had to consider some sort of protocol or guidelines to consider when evaluating a case's suitability for the imposition of GPS restrictions. Accordingly, the Court developed a checklist for the purpose of considering whether the imposition of the GPS restriction was appropriate. Among the considerations the Court deemed appropriate were: Page 1 of 5

3 What were the grounds for the original DVPO?' Was the violation of the DVPO violent or threatening (or, in contrast, a phone call)? Had the Defendant also been found guilty of an assault or similar serious offense and what portion of any sentence is to be served actively? Was the VictimlPetitioner present at the trial/sentencing of the Defendant/Respondent and what were the former's wishes as to incarceration versus a suspended sentence and GPS monitoring? Was the Defendant employed and making payments toward EFM or Child Support such that active incarceration might be problematic, rendering GPS warranted. How much time was left on the DVPO's term and could/should it be extended to cover a greater portion of any period of probation imposed in connection with a suspended sentence for violating the DVPO or committing more serious offense in violation of a DVPO? If the Defendant were excluded from certain areas by the GPS program, what collateral issues arise with regard to the DVPO's provisions regarding the exchange of children, presence at schools, etc.? Could the restricted area be clearly defined in the probation docket and the DVPO (to the extent modified at sentencing) without the potential defect of delegating the delineation of that area to the Washington County Sheriffs Department (the "WCSD"), and should areas like workplaces located in business districts be included or would doing so preclude the Defendant/Respondent from receiving necessary goods or services? In addition to the foregoing considerations, to the extent it was able to do so, the Court sought to address a number of procedural challenges or impediments which bore upon the efficacy ofthe Statute. Among these challenges were the facts that: 1) a violation of the GPS restriction would amount to a violation of probation and not a new crime which would have permitted an immediate warrantless arrest'; 2) the GPS restriction was only authorized/or the, As part of its working protocol to effectuate the Statute's goals, the Court determined that at the trial of criminal charges including a violation of a DVPO, the clerk would have arranged for the original civil DV file toaccompany the criminal file for potential reference, when necessary and appropriate at sentencing. 2 While an officer with probable cause to believe that a person is violating a DVPO may (and "shall") arrest that person with or without a warrant, the officer would need a bench warrant to arrest a person for violating GPS restrictions which appear only in a pretrial release or probation order. Family Law (b) (permitting warrantless arrest of person violating a DVPO); Criminal Procedure (providing that a defendant who violates a pretrial condition maybe arrested on a bench warrant); and Maryland Rule (a) (providing that proceedings against a defendant who violates a condition of probation are initiated by an order directing the issuance of a suj?l1lons or warrant). Page 2 of 5

4 duration of the original DVPO and not throughout the period of probation; and 3) the practical reality that when charged for violating a DVPO, there are often other accompanying criminal charges (e.g., assault, burglary, etc.) with more substantial penalties, with the outcome that in serious cases, convictions are often obtained by a plea to a more serious offense, with the charge of violating the DVPO being nol prossed. (Ironically, this meant that those cases entailing more egregious offenses but which included a violation of a DVPO could result in probation for a conviction other than a violation of the DVPO, rendering the GPS restriction unavailable under the Statute.) At the outset, the Court recognized that the manifest purpose was to extend the boundaries of the area from which a respondent was excluded (i.e., beyond mere addresses) and to enable law enforcement to effect an immediate, warrantless arrest of a person violating a GPS restriction if one was imposed. However, since the Statute made the GPS restriction a condition of probation, and since it was doubtful that a warrantless arrest could be made simply for a violation of conditions or probation or pretrial release, the Court, after consulting with the Attorney General's Office, determined that incorporating (in advance) language into its future DVPO's which required compliance with any GPS restrictions were they imposed in the future, would make a hypothetical violation of such probationary condition also a violation of the D VPO and thus enable an immediate, warrantless arrest by law enforcement, since a violation of the GPS restriction in the DVPO would thereby constitute a new crime. Accordingly, after the Statute was enacted, when new DVPO's were issued, the Court worksheet and DVPO's issued automatically included language, which might have become operative in the future as a condition of the DVPO, that the respondent would comply with the rules and regulations of any court-ordered GPS Tracking System Program. This "fix," which was intended to enable an immediate arrest for a violation of pretrial release or probation in order to effectuate the goal of ensuring a petitioner's safety, is likely inferior to express statutory language which might otherwise authorize such an immediate, warrantless arrest, by, for example, expressly making the violation of any court-ordered GPS restriction, regardless of its origin, a new crime. Evaluation. As noted above, aside from the factual considerations involved on a caseby-case basis, the principle procedural challenges of the Statute were that the ability to impose the GPS restriction was limited to: 1) suspended sentences for convictions for violating a DVPO and was also limited to: 2) the duration of the existing DVPO and not throughout the period of probation. These constraints, in the Court's experience, undermined the efficacy of the Statute. First, as discussed above, the sorts of cases in which the GPS restriction would likely prove most beneficial are those in which the original charges result in a conviction for a crime with a more significant potential sentence, resulting in the nolle prosequi of the DVPO charge. Second, often, by the time the charges come to trial, there may be little or no significant term remaining on the DVPO. Page 3 of 5

5 Possible Solutions. In the absence of other changes, based solely upon the Court's experience, among possible solutions to some of the foregoing problems could be: 1) Amending Family Law (b)(2) or (b) (and other applicable law) to provide clear authority to officers to arrest, without warrant, a person whom the officer has probable cause to believe has violated any court order containing a GPS restriction; or, making non-compliance with a court-ordered GPS restriction, regardless ofthe procedural origin ofthe restriction (whether in a DVPO or as a condition of pre-trial release or probation for some other offense), a new crime which would authorize law enforcement to make an immediate arrest. 2) Expanding the provisions for GPS to include domestically-related charges, ie. assault or destruction of property, may increase the frequency of cases in which the GPS could be ordered. 3) Authorizing a GPS restriction to be imposed upon a convictionfor any crime in which the victim was a Petitioner and the defendant a Respondent in an existing or prior DVPO, regardless of whether the ultimate conviction was for violating the D VPO or a more serious conviction, such as an assault, and regardless of whether the DVPO was still in effect at the time of conviction; or, authorizing a GPS restriction to be imposed on the request of a victim upon a defendant's convictionfor any crime in which the victim vis a vis the defendant meets the definition of a person eligible for relief under the Family Law Code. 4) Authorizing the imposition of the GPS restriction throughout the period of probation, not merely for the remaining term of a DVPO. 5) One of the problems discovered during the implementation of the GPS Monitoring Program was the lack of a telephone land line in the residence of the person being monitored. This should be a requirement ifthe Program is continued so that there is continuous monitoring of the offender while at their residence where cellular coverage may be spotty or lacking..-, ) -~spectfully submitted, / /~;! I, ~/ / i: ( Ol~:e~hn Cejk~ Jr Administra~ JUdg7- Istrict Eleven C (, t---)~j~ug~ ~.'Jln t+; Sheriff, Washington County, Maryland Page 4 of 5

6 Attachment: Exhibit A: GPS Quarterly Reports January 1, August 3,2012 Page 5 of 5

7 Quarterly GPS Report January 1, March 31, 2011 During this report period, no defendants were placed on active electronic monitoring. Judge Wright seriously considered two defendants for GPS tracking. In State vs. Ronald Clark, 6V70132, (charged with four counts violate exparte/protective order, harass; a course of conduct, and telephone misuse; repeat calls) sentencing was set for March 2 but was postponed and is currently scheduled for April 12, The defendant has a detainer lodged against him from Berkeley County, West Virginia and they are planning to extradite when this case is concluded. In State vs. Anthony Britti, OV69958, (charged with four counts of assault - second degree) the defendant was sentenced on March 2,2011 to nine years, eight years suspended. A Motion to Modify has been a filed and a hearing is currently scheduled for June 21, Judge Thomas made note of three different cases where GPS tracking was not ordered because DVIPO denied at final hearing due to insufficient grounds; Non-violent violation; Global settlement/plea with CASA; no physical contact after court proceeding; defendant receiving mental health treatment. The Washington County Sheriffs Department is prepared to begin monitoring defendants when it becomes necessary and is so ordered. Submitted by: Sara Snyder, County Clerk April 4, 2011 CC: Honorable Mark Thomas Honorable Dana Wright EXHIBIT A

8 Quarterly GPS Report April 1, June 30, 2011 During this report period, two defendants were placed on active electronic monitoring. Judge Wright placed Ronald Clark, 6V70132 (charged with four counts violate exparte/protective order, harass; a course of conduct, and telephone misuse; repeat calls) on active electronic monitoring April 12,2011. The GPS fee was waived for 6 months. It came to the court's attention that the defendant moved within two blocks of the victim. Modification was held on May 2,2011 and the parameters were more defined. A Supervision Summary was received on May 24,2011 alleging Mr. Clark has failed to comply with any conditions of probation including that at 4:00 A.M. on April 27, 2011, Mr. Clark's GPS signal was lost. A hearing is currently scheduled for July 6, Defendant Joseph A. Galloway, 4V73707 (three counts of violate exparte/protective order, arson/threat and stalking) on June 3, 2011 was placed on Pre-Trial Release and ordered to comply with GPS tracking. The trial is scheduled for August 4, 2011 at 8:30 A.M. Judge Thomas made note of four different cases where GPS tracking was not ordered because Bond review; no assault involved; defendant not employed; Mistakenly sought to impose GPS restriction as probation condition for suspended sentence for 2 nd degree assault charge; Risk of non-compliance too high, benefit of GPS too low - kept bond high; Weapon forfeited, case placed on the Stet docket. Submitted by: Kristin Holden, County Clerk June 30, kuirlj--l ~d..~ CC: Honorable Mark Thomas Honorable Dana Wright

9 Quarterly GPS Report July 1, September 30,2011 During this report period, no defendants were placed on active electronic monitoring. Judge Thomas made note of three different cases where GPS tracking was not ordered because Violation of Domestic Violence was technical, non-violent, did not involve direct contact; victim/petitioner was opposed to GPS restriction; State recommended suspended sentence; no problems with compliance since the Temporary Order and Final Order; defendant has no history of convictions for violent crimes; Sentence was imposed not suspended; According to the victim, issue is alcohol; placed on supervised probation. Submitted by: Kristin Holden, County Clerk September 30, 2011 CC: Honorable Mark Thomas Honorable Dana Wright

10 Quarterly.GPS Report October 1, December 31,2011 During this report period, no defendants were placed on active electronic monitoring. Judge Wright made note of one case where GPS tracking was not ordered. Robert Shuey, 5V Bail Review held on Friday, December 2,2011 including two counts of Violate ExpartelProtective Order; Judge Wright reset the Bail Review for Monday, December 5, 2011 for GPS Tracking; Factual basis: no alleged in person contact, but alleged Facebook postings with some threats to the well being of the victim, the defendant had been employed for quite some time and seemed like a good fit for GPS; On Monday, December 5,2011 Judge Wright learned that the Petitioner had not shown up for the Final and no Protective Order. remained in effect. Thus, GPS not available. Submitted by: Kristin Holden, County Clerk December 29,2011 cc: Honorable Honorable Mark Thomas Dana Wright

11 Quarterly GPS Report January 1,2012 through March 31, 2012 During this report period, no defendants were placed on active electronic monitoring. Submitted by: Kristin Holden, County Clerk March 30, 2012 CC: Honorable Mark Thomas Honorable Dana Wright Sheriff Douglas W. Mullendore

12 Quarterly GPS Report April 1, 2012 through June 30, 2012 During this report period, no defendants were placed on active electronic monitoring. Submitted by: Kristin Holden, County Clerk June 29,2012 ~ ~l tio-fclt>-- "- CC: Honorable Mark Thomas Honorable Dana Wright Sheriff Douglas W. Mullendore

13 Final Quarterly GPS Report July 1, 2012 through August 3,2012 During this report period, one defendant was initially authorized to be on active electronic monitoring. Judge Wright authorized placing Ryan M. Duke, 3V78165 (charged with one count of violate exparte/protective order) on active electronic monitoring at his initial Bail Review hearing on July 13, A second Bail Review was scheduled for July 16,2012 but the defendant posted $50, bond the evening of July 13, Submitted by: cc: Kristin Holden, County Clerk August 3,2012 Honorable Mark Thomas Honorable Dana Wright Sheriff Douglas W. Mullendore