Diana Graettinger | Thursday, June 19, 2008

BANGOR, Me. -- People on probation in Maine are on the honor system: If police stop them, they have to tell on themselves.

But do they?

No formal structure is in place to alert officers to an individual's probation status. In small towns, officers often know, but not always.

That is about to change, however, because the state plans this summer to create a Web site that will make public the names of all individuals on probation.

"Not only the public can access [the list] and find out if so and so is on probation, but the police officers and dispatchers can go to that Web site and run a name and see if that name pops up statewide," said Charles O'Roak, regional correctional administrator for the Division of Probation and Parole in the Department of Corrections. "It is going to tell them some basic information ... but it is going to tell them enough to know that he's on probation and what region he is out of."

While state officials have been working on the project since well before May 12, a fatal shooting that day on the Passamaquoddy reservation at Indian Township serves to highlight the potential ramifications of not having ready access to probation information.

On May 10, according to Passamaquoddy tribal officials, Douglas P. Kelley Jr. of Calais failed to tell an Indian Township police officer that he was on probation after he was stopped for operating a motor vehicle while under the influence of intoxicants. Police arrested Kelley and took him to jail, but even though his probation conditions included a provision that he not use or possess alcohol, he was released the next day, just a few hours after being taken into custody.

On May 12, Kelley returned to the reservation with a handgun, and according to witnesses, fired shots at his girlfriend's house on Hemlock Point Road. Indian Township police soon arrived at the scene and the 40-year-old Kelley was fatally shot.

Would the situation have turned out differently had police been aware of the probation a few days earlier and Kelley been kept in jail longer for violating the conditions?

"Who knows?" O'Roak said. "If this guy was OUI and ... we had known [about his probation], then we might have locked him up. If we had locked him up, would we have let him go the next day once he was sober - who knows? Would we have held him for court? Would that have changed events? Who knows?"

Tragic irony?

Kelley's probation officer, Bill Love of Calais said he could not speak to the specifics of Kelley's case, but he agreed there were procedures in place to handle probation violations. Once a person is arrested for violation of probation, the probation officer places a hold on him and the individual remains in jail. Since it was an OUI charge, Love said, it was his practice to place a hold on those types of cases.

"I have three business days to file a motion with the court, then the court has two days after that, five business days following an arrest, to hold what is called a probable cause hearing. Typically that is also an arraignment where they read the motion, they appoint a lawyer, they ask for a plea. But what the court does, it rules on whether there is probable cause to underline the probation hold," he said.

O'Roak of the Division of Probation and Parole said in an interview last month that in Maine anyone who is on probation is under court order to disclose his status to a police officer. The officer is not required by law to notify the probation officer, but usually does, according to Love.

Asked about an honor system that requires people faced with going back to jail to tell the truth, O'Roak said the irony is not lost on the state.

"We often said that ourselves. We are asking the offender to be honest at a time when it might not be beneficial for him to be honest. That's been this way forever, which doesn't mean it's right," he said. "Surprisingly it always amazes me how many people will tell police they are on probation."

And there are penalties for not telling. If a person doesn't disclose and his probation officer finds out later, then the offender can be charged with a probation violation.

"We make that real clear [to those on probation] that this is an honor system. We talk to them about that," O'Roak said.

O'Roak said the new system is likely to help. "Often times we know things have happened that we weren't notified of and we wished we had been, [and then] things would have been different," he said.

What happened?

Kelley first tangled with police in March when he assaulted his Indian Township girlfriend at her home on Hemlock Point Road. He was sent to jail for 25 days. He was released on April 8 and began his one-year probation that included the conditions that he not use or possess drugs or alcohol, possess firearms or have contact with his former girlfriend.

Little is known publicly of Kelley's activities between his release from jail on May 11 and his return to the reservation on May 12, but during the early morning hours of May 10 on Hemlock Point Road, Indian Township police Officer James Mendoza stopped Kelley for drunken driving.

Mendoza followed procedure - he ran a license check on Kelley through the Washington County Regional Communication Center in Machias. But there was no information provided about any probation conditions and Kelley did not say anything about being on probation to Mendoza.

First Assistant District Attorney Paul Cavanaugh said earlier that under the current system police can find out about a suspect's driving and criminal records and whether any protection orders are outstanding, but probation information is not computerized.

"Let's face it, if they [probationers] are in trouble they are motivated not to say something, and if the officer didn't have personal knowledge of who this person was, then even a radio check might not reveal the probation situation," Cavanaugh said.

Lt. Larry Hayward, operational supervisor of the Washington County Regional Communication Center, agreed. He said the center has only been receiving a written list of people on probation from the county's two probation officers.

"We only get a list put in my mailbox and we come down and put it in a drawer. We do not have any computerized records of probation," he said. "If an officer asks us if someone is on probation, we check the list."

Love also sends out lists to law enforcement agencies, but officers don't always see them. And the lists aren't necessarily up to date because an individual's probation status can change.

After running the license check on Kelley, Officer Mendoza took Kelley to the Washington County Jail where he was booked for operating under the influence.

The jail did not have a list of people on probation either and Kelley went through the jail intake system answering questions about everything except for his probation status.

Soon after Washington County Sheriff Donnie Smith learned last month that the jail did not have a list of probationers, Smith said, he contacted the county's two probation officers. The jail now has a list and it is a matter of routine for corrections officers to check it.

"It still isn't a perfect system," Smith said this week, "but it is better than we had."

No one can say for sure that if Kelley's probation officer had placed a hold on Kelley he might not have returned to the reservation later anyway; nor can anyone guess whether the system the state plans to put in place this summer would have helped Kelley.

Indian Township Gov. Billy Nicholas won't speculate on what might have happened, but he is glad changes are being implemented.

"Anything that the state would do that would help officers in the field identify potential probation violators would make any law enforcement agency more aware of what they were dealing with. But that was not the case back in May," he said.