*1 criteria, of which and breach we deem law, of -discretion as matter of Appellant, abuse TYLER, Mark E. thereby philosophical oxymoron creating a
by savaging notions of discre- traditional tionary STATES, powers. Appellee. UNITED Id. at 1049. No. 95-CO-183. Judge quotes approvingly, Aldisert id. Appeals. District of Columbia Court premier from “America’s federal expert,” Wright, Alan who courts Charles En Argued Banc June reversed,
wrote, “Every time a trial 23, 1997. Sept. Decided appel- every is reiterated that time belief qualified trial courts are better than late justice
judges requires, decide what public in the litigants
confidence of and impaired.
trial court will be further Under system, or our trial feasible conceivable the last in the always
courts must word eases,” Judge goes
great bulk of and Aldisert respected cite the much academic-ob-
on to
server, Rosenberg, Professor Maurice who forth, reasons, among ap-
has set other to trial courts in the
pellate courts defer during trial
exercise discretion superiority posi- her] of his nether [or It is not knows more [or she]
tion. and sis- [brothers
than his loftier [or her]
ters]; judge] more rather trial sees [the dialogue senses In the between
and more. appellate judges judge, You saying:
the former seem to be often not think would
were there. We do we did, you what but we were not
have done signifi- be unaware of we matters, record not ade-
cant for the does convey at the
quately to us all that went on Therefore, you.
trial. defer
Id. at 1049.
Accordingly, majority’s I from the dissent of artificial stan- in the instant case
creation imposition of them and criteria and
dards clearly more
upon the trial saw majority sensed than does the more majori- I think that the
upon a cold record. of liti-
ty’s impairs the confidence decision all to public in the
gants community.
the detriment *2 Gottesdiener, Service,
Eli Public Defender Klein, with whom James Public Defender Service, appellant. the brief for was on Trosman, Elizabeth Assistant United Holder, Attorney, States with whom Erie H. Jr., Attorney, R. United States and John Fisher, Spagnoletti, J. and Robert Assistant brief, Attorneys, United States were on the appellee. WAGNER, Judge, Before Chief FERREN, TERRY, STEADMAN, FARRELL, SCHWELB, KING, RUIZ REID, Judges. Associate RUIZ, hearing, the Judge: gov- At the Associate ernment relied on the indictment estab- presents ques us with the This lishing probable cause that committed tion District Columbia Bail the offenses of which was indicted. (1996), Act, pro Reform D.C.Code 28-1322 offered further evidence of *3 person sought pre vides to a be detained underlying turned, charged the offenses and present right challeng trial the evidence instead, Tyler to offer evidence that was government’s ing charged the of evidence the dangerous and should be detained because of government offense. The contends that once prior for his convictions similar offenses grand a has cause suffi jury found against young girls and the fact that he was indictment, cient to the return probation prior on on the convictions the right charged present has no evidence the charged time of offenses.4 charged concerning the offense unless the The trial court first ruled that once the government relying itself on circumstances probable cause —in had shown surrounding charged the offense as a reason case, through the this indictment —and had that, for detention. We hold not proffered any of not additional evidence the by withstanding the return of an indictment dangerous- underlying charges to establish grand jury, express provisions the ness, Tyler challenge govern- not could 23-1322(e)(l) entitle a charged ment’s evidence of the offenses. Al- charged awith crime to evidence subsequently the trial court altered “nature about the and circumstances of position a so its and allowed continuance that weight “the offense” and evidence Tyler subpoena could witnesses conduct against” purpose pro him or her for charged into investigation further of- viding information that the court must fenses, eventually the trial court returned to making consider in an individualized determi original ruling requesting after further its nation should be parties. briefing on the issue from both In a pretrial. February order written dated trial court concluded that the deten- I. Facts the Case presen- hearing “the tion would limited to presented Tyler Mark on of evidence on the issue of defendant’s was arrested tation showing may January dangerousness, a warrant on on a one- but not be through a complaint knowledge relating count carnal made weak- government requested preven- minor.1 The ness of case.” pursuant expressed tive to D.C.Code 23- concern that a de- 1322(b), February for used hearing hearing and a was set tention not be date, 7,1997.2 days hearing underlying trial on or as Five “as a indictment potential getting discovery for from grand jury against a an indictment a method returned minor, permitted charging Tyler was Tyler for his conduct with a witnesses.” presented he knowledge him with one count of carnal evidence relevant whether community,5 was sodomy.3 danger to the he one count of but application approved possession was to distribute. 1. The a warrant cocaine intent addition, Attorney’s Tyler States December been twice in the United office on had arrested Tyler 1994. It was reviewed and issued warrant late 1980’s for child sexual abuse. was on January on The warrant probation 1995. for the four convictions of carnal days was executed 10 later. knowledge at time he arrested on the was underlying charge in this case. Tyler right his to have the detention 2. waived presentment. held within three 5.Tyler explained employed, and that he is was a Department who officer had former Corrections charge sodomy 3. The was dismissed two months discharge Army. from the an honorable received later, request government, because at the argued evidence that he that there He in the had misunderstood the detective was unable to control himself from what he complainant's description of the incident. passing preferential fancy” young ‘‘a termed girls, that been Tyler prior attempted and that the fact he had sen- had four convictions of probation prior attempted with his knowledge and tenced to in connection carnal a conviction of permitted to proffered, Tyler guilty plea, introduce evidence he formed had entered witnesses, through testimony argue Ty- that the continues to complainant charges appeal had fabricated the ler’s should be dismissed as moot. against Thus, him.6 Tyler’s The trial court ordered that consider first whether pretrial, be detained concluding guilty plea and conviction renders this there was convincing non-justiciable. clear and evidence of dangerousness grounds: on alternative A case moot if is considered charges “based on which been expectation “there is no reasonable conjunction indicted in prior with these con- alleged violation ... will recur and interim solely prior victions” and based on his convic- completely relief or events have and irrevoca (“frankly, tions without even consideration of bly eradicated the effects of the violation.” ... talking we’re about an Morris, In re 482 A2d *4 very period individual within a short of time Davis, (quoting County Angeles Los convictions”). who has five 625, 631, 1379, 1383, U.S. 59 L.Ed.2d Tyler promptly appealed the trial court’s (1979)) (internal quotation marks and detention summary order and moved for re- omitted). citations There is doubt that 5, 1995, May versal. On this court denied Tyler if prevail even were to on the merits of for summary motion reversal and af- appeal, impact his the result would have no appeal, on firmed order with one dissent. him longer on in this case because he is no 8,1995, May On three before the sched- being pretrial, serving detained but is date, Tyler plea uled trial guilty entered a imposed guilty sentence as a result of his enticing a minor child under D.C.Code However, plea. apply we do not a strict rule 22-4110; government agreed to dis- mootness dismiss a case because it no charge miss the knowledge. indicted of carnal longer particular appellant, affects if it 18, 1995, July Tyler On was sentenced to a presents importance likely a matter of that is split twenty sentence of years, months to five recur, yet respect evade review with suspended with year, execution of all but a similarly Lynch others situated. v. United and a trial court recommendation for work States, 580, (D.C.1989); contra, 557 A.2d halfway-house release in program. The Hunt, 478, 482, 102 Murphy v. S.Ct. placed Tyler trial court also probation on 1181, 1183-84, (1982). Spe L.Ed.2d 353 years, five with the first six months under cifically as arising pre concerns issues from supervision, including intensive reporting, detention, notwithstanding the defen employment, continued participation in treat- right expedited dant’s consideration ment for his prob- alcohol abuse and sexual reversal, way of a summary motion for we requirement lems and a that he not be alone recognized altogether probable have that it is young girls.
with period during that the limited which a may be pretrial expire could granted Tyler’s
We petition for rehearing appeal an is heard on the merits. See Unit 12, 1996, en banc on March and vacated our Edwards, ed States v. 430 A.2d 1324 n. May order of affirming the trial (D.C.1981) (en bane). particularly That is court’s order of detention. case, so where the was first II. Mootness denied a motions division of the but granted Even petition we subsequently the full court to hear decided for rehearing en banc after we were in- the matter en banc.7 Tyler; complainant convictions indicated that he had not been con- and that the said had danger community. sidered a bring charge she would a false of sexual miscon- against Tyler’s duct another man who lived in Tyler proffered
6.
that he had several witnesses
apartment building because he had
her a
called
questions
who would raise serious
about the
"bitch.”
complainant's
Specifically, Tyler
truthfulness.
proffered
complainant
By
argument
Ty-
had told her cous-
the time this court heard
on
engaged
Tyler;
summary
in that she had not
in sex with
ler’s motion for
reversal and issued its
complainant
previously
opinion affirming
der,
that the
proffered
had
said to the
the trial court’s detention or-
already
witnesses that she wanted
sex
had
been in
detention
banc,
specific
By deciding
considering
the case
Before
stat
to hear
en
pause
utory language, we
to consider the
that the case raises an issue of
have indicated
initially
A
matter in context.
comes
R.
“exceptional
importance.” D.C.App.
justice system as a
within the criminal
result
40(e)(2).
Tyler’s
This
is not limited to
issue
arrest,
Typ
of an
cause.8
based
case;
rule,
applied
per
se
ically,
upon
complaint pre
arrest
criminal
considering
statutory require-
without
The Fifth Amendment re
cedes indictment.
every
apply
case of
ments
d
quires
“trie
that a
-can
23-1322(b).
under
presentment
[felony] only on a
or indictment
government
dissenting opinion ar-
The
jury.” Wooley
a grand
v. United
precise sequence
gue
events
(D.C;1997)
(quoting
697 A.2d
U.S.
Tyler’s
unlikely
unusual and
to recur.
Const,
V).
jury
A grand
amend.
recurrence, however,
The likelihood of
represents
independent
assessment
government
more within the control of the
representatives
community,
in a
albeit
than the
deter-
defendant.
context,
proba
that there
non-adversarial
presentment
timing
mines the
of the
ble
the defendant committed a
grand jury
case to the
and the
return
specified offense. See
v. Man
United States
indictment, specifically, whether indictment
dujano,
preventive
occurs before or after a
(1976).'
grand
275 (citing States v. A.2d beyond a reasonable doubt. United 581-82).9 Salerno, 739, 748-50, 107 The Lynch, 557 A.2d at supra, S.Ct. (1987). determination, however, Because the L.Ed.2d 697 can be trial court’s stake, charged person’s liberty interest is at hearing “pursuant only made after however, process (d)” due requires substantive provision subsection of D.C.Code procedural safeguards. Id. at standards § 23-1322. 2101; S.Ct. at Stack v. see also 23-1322(d) perti- provides 1, 6,
Boyle, 342 U.S.
L.Ed. 3
part:
nent
(1951) (“To infer from the
fact of
(2)
hearing,
person has the
At
unusually high
alone a need for bail in an
and, if
represented by
right to
counsel
an
meet]
amount
cannot
[that
rep-
financially
adequate
unable to obtain
act.”).
arbitrary
Supreme
Court
resentation,
appointed.
to have counsel
Act,
determined
federal Bail Reform
(3)
oppor-
person shall be
an
afforded
(1994),
based on
U.S.C.
which is
testify....
tunity to
District
statute of the
Columbia,
oppor-
pro
satisfies
due
shall be
constitutional
afforded
Salerno,
witnesses,
requirements.
supra,
tunity
cess
to cross-exam-
751-52, 107
at
appear
hearing,
S.Ct. at 2103-04.
who
ine witnesses
at the
or
proffer
and to
information
comprehen-
The District of Columbia has a
concerning
otherwise. The rules
admissi-
statutory
permits pretrial
sive
scheme that
bility
criminal trials
do
subject
certain
individuals
presentation
apply to the
and consideration
express procedural safeguards. D.C.Code
hearing.
of information
(1996).
§§
Generally,
to -1325
23-1321
liberty pre-
is entitled to remain at
that the trial
con-
The matters
court must
upon
person’s
promise
appear
sider at
are also
in the
set out
appear-
trial or execution of an unsecured
statute:
*6
ance
in an
bond
amount set
the trial
(e)
shall, in
judicial
The
officer
determin-
judicial
“unless the
officer determines
ing
there
are conditions of release
reasonably
that the release will not
assure
reasonably
appearance
that
assure the
will
appearance
the
person
required
of the
or
as
person
required
safety
as
'of
of the
and the
endanger
safety
any
person
will
the
of
other
any
person
community,
and the
take
other
23-1321(b).
community.”
or
§
the
D.C.Code
into account information available concern-
determination,
In the absence of that
the
ing:
person
trial court must release the
under the
(1)
the
The nature and circumstances of
least
designed
restrictive conditions
to en-
charged, including
of-
offense
whether the
person’s appearance
sure the
at
and the
crime of
dangerous
fense is a
violence or
safety
persons
of other
community.
and the
§
these terms are
in
23-
crime as
defined
23-1321(e)(l).
§
only if
D.C.Code
It
there
1331,
justice
or involves obstruction of
as
probable
cause to believe that the defen-
22-722;
§in
defined
dant has committed certain identified serious
(2)
weight of
the
against
The
the evidence
determines,
“by
crimes and
court
person;
evidence,”
convincing
clear and
of
that
set
history and characteristics of the
The
of release will
appearance
conditions
ensure
including:
person,
person
required
safety
of the
as
or the
of
(A)
persons
character,
community,
physical
other
and the
that
and
person’s
may
condition,
ties,
pretrial
family
trial court
employment,
order
detention.
mental
23-1322(b);
resources,
§
in
length
D.C.Code
of
Scott v. United
financial
residence
trial,
presumption
pending
9. The
creates a
or
or
statute
rebuttable
while armed while on release
reasonably
of
no set
conditions will
assure
engaged
attempts
justice.
violent
to obstruct
any
person
safety of
the
ty
other
and the communi-
23-1322(c);
§
§
D.C.Code
D.C.Code
23-1325
judicial
if
officer
"substantial
finds
(first
armed).
degree
while
That
murder
rebutta-
probability”
person charged
that the
has commit-
presumption did not
ble
arise
this case.
specified dangerous
ted
crimes
certain
or violent
ties,
community,
past
solely on
fact of the indictment-and
community
con- based
duct, history
drug
history.
or
relating
prior
alcohol his
criminal
abuse,
history,
record con-
criminal
and
argument
unpersuaded
are
We
cerning appearance
proceedings;
court
at
permit
that to
evi
and
[govern
‘¿weightof the
challenging
dence
(B) Whether,
at the time of
current
evidence”
there
been an
ment’s]
where
arrest,
proba-
person was on
offense or
challenging the
is tantamount
indictment
tion,
parole,
pending
or on
other release
itself,
of
indictment
contravention
estab
trial, sentencing, appeal,
completion
or
case law that an indictment
lished
conclusive
local, state,
sentence for
offense under
probable
ly determines the existence
cause
law;
or federal
and
See,
Scott,
e.g.,.
purposes
detention.
(4) The nature and
of the dan-
seriousness
(citing
supra, 633
Gerstein v.
A.2d at
community
any person
ger to
or the
Pugh, 420 U.S.
117 n.
posed by
person’s
would be
release.
(1975)).-
argu
This
L.Ed.2d
23-1322(e).10
D.C.Code
the-, statutory
misses
thrust of
ment
precise
presented by
ignores
plain language
scheme and
is whether
at which
Here,
statute.
relied
Tyler was ordered to be detained
upon by the trial court as
“conclusive
requirements
of D.C.Code 23-
satisfied
Ty
“probable
cause” that
determination”
1322(d)
(e).
that it did
We conclude
offenses,
ler had committed the
permitted, pursuant
was not
because
requirements
two
that must be met
first of
proffer,11 “to
witnesses” that
his
detained,
pretrial.12
explored
would have
the “nature and circum
probable
requirement
is constitu
charged” and
stances of the offense
chal
tional,
cause a
probable
for without
“weight
against”
lenged the
trial,
even be
over for
much
may not
bound
him,
plain
expressly provided by the
or
guilt
before his
her
less detained
statutory
language.
meaning
Gerstein, supra,
proven at trial.
1322(d)(4)
(e)(1)
(2).
23—
(holding
to trial is the
exception.”
limited
If a defendant who did not commit the
Salerno,
739, 755,
United States v.
481 U.S.
detained,
preventively
subsequent
crime is
2095, 2105,
(1987);
construed to ensure that defendants are not
II.
detained without bond “unless the lawmaker
Judge King
judges
join
and the
who
him
clearly
they
has
said that
should [be].”
persuasive
proposition
make a
case for the
Bass,
336, 348,
United States v.
precise
presented
situation here
515, 523,
(1971) (cita-
S.Ct.
280 Supp.), court has the en bane decided argument that we should not decide per panel on the merits was in its most a motions
this case reverse a decision prior to posture our vote on suasive days became moot three after that decision petition rehearing en at that for banc. Even the defendant entered a was issued when time, grant majority of the court voted to plea pur- guilty was thereafter detained proceed petition. Now that the case has statutory provision. suant a different incongru I point, this think it would be ed to has chosen this course even en banc court step backwards and to rule on ous to decline it reverses was an un- the decision I agree issue. with Chief the substantive precedential published no val- judgment with Rehnquist that “once this court Justice Moreover, beyond ue this case.1 because case, a consideration of a an ex undertaken for judgment on cross-motions was decided ception principle is war [the mootness] affirmance/reversal, summary language Doe, Honig v. 484 ranted.” U.S. judgment cryptic is so contained in the 592, 609, 98 686 L.Ed.2d pressed is hard uninformative that one accord, Melton, (concurring opinion); re law, if any, was exactly discern what rule banc). (D.C.1991) (en 892, 908 n. 32 597 A.2d laid down.2 here, where, especially true as This is has had the benefit of a first-rate ad court said, en- Finally, as I defendant presentation. versarial guilty three after the plea tered carry If we the doctrine of mootness too judgment entered the division. Once was area, particular re- far this then effective guilty he was pled defendant curtailing liberty of orders fundamental view (1996 23-1325(b) § pursuant to D.C.Code irretrievably impaired. I interests will be Repl.). the order Therefore join rejecting gov- therefore the court' 23-1322(b), pursuant § which was the or- position that we dismiss the ernment’s should division, by the motions der affirmed appeal as moot. longer in effect. KING, Judge, Associate with whom undisputed It mat essentially is this TERRY Judges STEADMAN Associate in the federal courts be ter would moot join, dissenting: expectation that cause there is no reasonable subjected to the same defendant will appeal In this order of detention Hunt, 23-1322(b) (1997 Murphy v. 455 U.S. pursuant again. to D.C.Code See action doing directly, namely, to IX D District of Court of he is barred from 1. See Rule Columbia Procedures; Appeals Operating supporting Internal D.C. Ct. challenge the indict the evidence Pearson, 94, 28(h); States, 72, App 98 n. 8 R. In re 628 A.2d 633 73 Scott v. United A.2d ment. 1993) (D.C. ("unpublished ... cannot be decision (D.C. 1993); v. see Lawn United States 355 precedent”); Scott v. District Co invoked 311, 317-18, 339, 2 321] L.Ed.2d 349 S.Ct [78 lumbia, 319, ("u npu 493 A.2d 322 5 States, (1958); v. Costello United [trial] not be decisions cited blished 397] 100 L.Ed. [76 counsel"); Angarano see also v. court United States, (1956); Coppedge v. United (D.C.1974) (en banc) States, 329 A.2d 79, 82-83, U.S.App.D.C. F.2d 131- ruling ("perfunctory on motion ... could Williams, (1962); v. United States might be and did not bind future divisions which (D.D.C.1992). It is F.Supp. therefore motions.”) to decide similar asked appellant’s motion for sum- ORDERED that stated; mary It is reversal is denied. point division's order on this 2. The appellee's mo ORDERED that FURTHER for oral This matter came the court granted summary be tion affirmance is summary appellant’s argument on motion "supported trial court cause the order summary appellee's motion for reversal 23-1324(b) proceedings below.” D.C.Code The court concludes that affirmance. States, (19 89); v. see Ireland United sufficiently weight of the considered "the [defendant],” (D.C.1979). against It A.2d 23-1322(e)(2) (1994 Supp.), when it took and ADJUDGEDthat ORDERED FURTHER indictment, is, be, the existence of the into account hereby and it AF- the order on * * * conclusively probable cause. established FIRMED. seeking to court further concludes that in (D.C. filed 95-CO-183 No. United case, strength contest appellant 5, 1995). May attempting indirectly what do *11 1181, 1188-84, be said in this case. tions. The same cannot 71 L.Ed.2d S.Ct. (1982). be said in the case Although we are not bound Id. at 82. It also cannot gener precedent, mootness we do not federal before the court here. by those ally stray from the course set out respect, the chance of recurrence With compelling there is a rea authorities unless First, is slim. presented here the events example, although For we have son to do so. only arise where deten these circumstances
previously
question
addressed the
of moot
23-1322(b).3
§
sought pursuant
tion is
appeals
pretrial
in
deten
ness
a number of
Second,
only
recur
events would
the identical
the defendant had either
tion orders where
cases where an indict
infrequent
in those
during
pleaded guilty
guilty
or been found
hearing.
the detention
ment is issued before
appeal,
exer
pendency
we have
Moreover,
repeat
would
the circumstances
of a
our discretion “to reach the merits
cised
only
rarer instances where
in those even
controversy”,
seemingly moot
McClain v.
is so extensive
criminal record
defendant’s
States,
601 A.2d
United
court will be able to determine
that the trial
(citation omitted),
only
two occasions.
dangerousness without
consideration
“seemingly
we
In both
moot” cases where
pending charges.
In its brief
the facts of the
important
reached the merits we decided an
court,
the en banc
every
pretrial
issue that affected
future
de
only
that it was aware of
two other
informs
applicable
tention case under the
statute.
instances and in neither case did the
such
Edwards,
example, in
For
United States v.
evid
defendant seek to
additional
(D.C.1981) (en banc),
cases because our decision affected detention case would arise respective
the future under the McClain,
provisions. supra, As we said in underlying
where we declined decide affecting only circumstances
issue under cases,
small number of we reached the merits Lynch
in Edwards and because both cases overarching important to the
“involved issues
resolution of an entire class of future deten 23-1325(a), 23-1322(b) 1,410 pursuant cases in cal- For detention was ordered probability there is a year court must find substantial endar 1996. If the correct committed offense. only where the its estimate of two other cases Therefore, in this case circumstances nearly duplicated, the circumstances here were pursuant could not arise for determination in less number such instances would occur that section. pretrial detention than of the cases where 0.2% 23-1322(b) pursuant sought. §to provided by the Ser- 4. Statistical data Pretrial pursuant Agency vices shows that detention