There I sat, minding my own business by checking my email after lunch on the 19th of August, when I made the mistake of opening an attachment to a Bar Association post in the form of a “Standing Order” from the Hon. Clarence Murray as senior judge of the Lake Superior Court Criminal Division and the Hon. Nicholas Schiralli as senior judge of the Lake Superior Court County Division. The document bore a cause number with the unfamiliar “CB” case type which, I learned, stands for “court business.” The full number is 45G02-1908-CB-001131. The case is titled “State of Indiana v. All Defendants . . . . . . On Electronic Court and/or GPS Monitoring by ICU Monitoring, Inc.” I looked today at MyCase to find that my search under the cause number “did not match any cases.”
So what was the essence of the Standing Order? Better to start here with the (nearly) full title: Standing Order Issuing Bench Warrant for All Defendants . . . on Electronic/GPS Monitoring by ICU Monitoring, Inc. The omitted portion of the case title listed all eight courtrooms in the Lake Superior Court system exercising criminal jurisdiction. ¹
What does the “Standing Order” actually say? There are three numbered paragraphs, the first of which orders ICU Monitoring, Inc. to give notice to the “respective court” of any bracelet tampering or geographical limit violation and to do so within one or two hours, depending on the seriousness of the pending offense.
The CLB views the notification requirement as an unintended confession to superficial consideration of an issue deserving better. If it’s the Friday evening of a holiday weekend, or any other time when court offices are closed, the mandated notification is somewhere between impractical, impossible, and ineffective. Moreover, the requirement of such notice serves no purpose without an expectation of responsive judicial action.
Here is the text of the second numbered paragraph:
2. The Court further ORDERS that, upon notification from ICU Monitoring, Inc. that the Court has received notice of a violation under this order, all law enforcement agencies are hereby authorized to and shall execute this bench warrant by arresting the defendant and incarcerating him/her in the Lake County Jail until further order of the Court.
The third and final numbered paragraph is of no interest to the CLB.
What’s so special about par. 2? It’s the first modern example that I have ever seen of a GENERAL WARRANT. Moreover, par. 2 delegates judicial authority to ICU Monitoring, Inc. It is ICU that notifies “all law enforcement agencies” to proceed by arresting the (alleged) electronic bracelet offender.
For those who flunked U.S. history, a general warrant (for search or for arrest) is one of the instruments of tyranny that fueled the American Revolution. The term lives on in infamy. One purpose of the Fourth Amendment to the United States Constitution was to forbid a general warrant. Stanford v. Texas, 379 U.S. 476, 480 (1965).²
Who is behind ICU Monitoring, Inc.? . . . None other than that connected frequent litigator and proud (Gary) bail bondsman known as Herbert Smith, Jr. Mr. Smith has sued the City of Hammond, the Lake County Clerk, and the Sheriff, among others. The prevailing theme of Smith’s litigation is that pretrial release of criminal defendants should always require the full security of bail bond as opposed to the more popular 10% cash deposit. The Court of Appeals warned Smith about potential sanctions for what the City of Hammond, its Clerk, and its City Court Judge characterized as “Smith’s abuse of the judicial system.” Smith v. City of Hammond, 848 N.E.2d 333 (Ind. Ct. App. 2006). When Smith persisted in his bail bond litigation after his warning from the COA, his next appeal was deemed “frivolous, unreasonable, or groundless” such that the COA affirmed the summary judgment against Smith and remanded for a determination of damages under App. Rule 66(E). Smith v. Lake County, 863 N.E.2d 464 (Ind. Ct. App 2007). Now that very abuser of the judicial system has a sweetheart deal from the courts he abused. As Uncle Ned might say, “Ain’t politics precious?”
The stench of Region politics doesn’t end with the anointing of Herbert Smith, Jr. as the ankle bracelet czar. For defendants awaiting trial the Standing Order described herein operates as an alteration or revocation of bail, such that a defendant lawfully admitted to bail may find himself back in custody without having committed any new offense. The subject matter is covered at IC 35-33-8-5 pertaining to “Alteration or Revocation of Bail.” Among the requirements are 1. an application to the court; and 2. clear and convincing proof by the State that (for instance) a violation of a condition of release has occurred. The Standing Order provides for the arrest and incarceration of a person without an “application” to the court. The Standing Order operates without any affidavit or sworn testimony, without participation of the State (Prosecutor), and without any judicial assessment of the sufficiency of evidence (if any) tendered to prove a bracelet violation.
For Hoosiers the right to bail is written into the State Constitution at Article 1 Sec. 17. Except in cases of “murder or treason . . . when the proof is evident or the presumption strong” all offenses are bailable. Accordingly, it is no small thing when a bailed defendant finds himself subject to extreme geographic restrictions enforced by an ankle bracelet and Herbert Smith, Jr., whose corporation profits from those restrictions.
Here is a summary of a court rule (from the SCOTSI) and some statutes respecting bail, home detention, and monitoring. Rule 26 of the Indiana Rules of Criminal Procedure is being phased in. Full state-wide applicability will come on January 1, 2020. Rule 26(A) promotes the release without money bail or surety of any arrestee who poses no substantial risk of flight or danger to self or others, but the court may impose restrictions and conditions. Presumably, CR 26(A) will allow the imposition of an ankle bracelet when there are geographical restrictions to the release.³ Home detention law applicable to some convicted defendants is found at IC 35-38-2.5-3. Most often (I think) home detention is ordered as a condition of probation. Chapter 2.5 at sec. 6 authorizes monitoring devices and user fees. The arrest of a probationer (except for a new crime) should be at the instance of the probation department and not pursuant to any general warrant ordered (in advance) by the court. See IC 35-38-2-3(b)(2) applicable to a probation department’s petition to revoke for a violation of terms of probation. After the filing of such petition the court has authority to order an arrest warrant (as opposed to a summons to appear) only if there is a risk of flight or of harm to others. The only statute found by the CLB authorizing a monitoring device for a released defendant awaiting trial is IC 35-33-8.5-11 which pertains solely to domestic violence defendants and authorizes GPS tracking and the imposition of costs.
In my very limited personal experience with a bracelet-wearing client (on bail) monitored by ICU, I discovered that the company would withhold “permission” for my client to come to my office. Part of the problem was with the (former, disgraced) judge who entered the ankle bracelet order (prior to my appearance) and otherwise with the delegation of judicial power to the petty tyrants of ICU.
What should be done? Any contract with ICU Monitoring, Inc. should be reviewed. Perhaps there are others better suited to providing the service. Perhaps competitive bidding or merit selection would favor a different service provider. From the Standing Order the requirement that the monitoring company notify the court of perceived violations is inoffensive enough to remain. The more effective notice from ICU would be to the Prosecutor, who could then decide whether to apply (according to statute) for a revocation or alteration of bail. The Court should defer to the statutory procedure rather than assume the adversarial, proactive role of rounding up all bracelet protocol violators on its own motion. The Standing Order, among its other flaws, is an expression of the judicial abandonment of unbiased neutrality. Following a report of violation and a proper application from the Prosecutor, the court could certainly issue an order to appear, to be served along with a copy of the State’s application. Consider also, if you will, how due process favors notice (in advance) and the opportunity for a pre-deprivation hearing. Upon reading the Standing Order and pondering its text, I don’t know whether to be angry, confused, or embarrassed.
The Standing Order is seen here as analogous to a rule. Judging and rule-writing involve different skill sets. Judging is generally informed by helpful adversarial argument. Rule-writing involves laying pen to paper without the benefit of helpful argument. The Standing Order is flawed to the extent that its author should retire his rule-writing pen before more damage is done.
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¹ The CLB adheres to the position that the Lake Circuit Court has criminal jurisdiction which is not exercised.
² While the term “general warrant” is absent from the United States Constitution and its Amendments, the term does appear in a prohibition clause at Section 10 of the (1776) Virginia Declaration of Rights. I found no mention of “general warrant” in the Indiana Constitution. Still, Article 1 Sec. 11 of the Indiana Constitution has a probable cause/particularity clause sufficient (I think) to prohibit general warrants.
³ I found nothing in CR 26 authorizing an imposition of costs for the bracelet monitoring of a released defendant pending trial.
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