Lynch v. United States

557 A.2d 580, 1989 D.C. App. LEXIS 54, 1989 WL 32239

• Court: District of Columbia Court of Appeals
• Decided: April 5, 1989
• Docket: 87-870
• Status: Published

Opinions

NEWMAN, Associate Judge:

On this appeal, Lynch challenges his pretrial detention ordered pursuant to D.C. (a) (1988 Supp.).³ He contends that (1) the procedures afforded him deprive him of liberty without due process; and (2) the evidence does not support the order of detention. A division of this court heard and decided his appeal. Lynch v. United States, 534 A.2d 658 (D.C.1987). The division found no constitutional violation in the procedures afforded Lynch. However, in the exercise of “our inherent supervisory power,” the division directed that “the government must in the future prove an individual’s dangerousness by clear and convincing evidence before he can be detained pursuant to § 23-1325(a).” Id. at 661. The division rejected Lynch’s other two contentions. By order dated June 2, 1988, we granted Lynch’s petition for rehearing en banc and vacated the division opinion. On authority of United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (as distinguished from “our inherent supervisory power”), we hold that where pretrial detention is sought pursuant to § 23-1325(a), the government must prove dangerousness by clear and convincing evidence. We reject Lynch’s other contentions.

I

The evidentiary and procedural facts are set forth in the division opinion. We will not repeat them in detail. Suffice it to say, Lynch was charged with first-degree murder while armed. Pursuant to § 23-1325(a), the government sought an order detaining him without bond pending trial. An evidentiary hearing was conducted by Judge Weisberg after he had denied Lynch’s motion seeking procedural rights not afforded by § 23-1325(a). Judge Weis-berg ruled that the statutory requirement of probable cause to believe that the defendant had committed the charged offense was a constitutionally permissible standard. With respect to the provision of § 23-1325(a) as to the defendant’s future dangerousness, Judge Weisberg was mindful of this court’s decision in De Veau v. United States, 454 A.2d 1308, 1316 (D.C.1982) (§ 23-1325(a) statutory standard of “reason to believe” future dangerousness equated with probable cause), cert. denied, 460 U.S. 1087, 103 S.Ct. 1781, 76 L.Ed.2d 351 (1983). However, he was likewise mindful of United States v. Salerno, supra, decided five years after De Veau, supra. Stating that he was acting out of an abundance of caution without explicitly deciding whether Salerno vitiated De Veau, Judge Weisberg required the government to prove future dangerousness by clear and convincing evidence. After the hearing, Judge Weisberg ruled that there was probable cause to believe that Lynch had committed the charged offense, and that the government had proved future dangerousness by clear and convincing evidence. Finding that the other statutory requirements had been met, Judge Weis-berg ordered Lynch detained without bond pending trial.

At oral argument, en banc, the government indicated that it had no objection to our deeming De Veau as having been superseded by Salerno. Consequently, we later requested the parties each to submit a proposed written dispositive order. What follows in Section II, with an added footnote 6, is basically the United States’ submission.

II

We hold that:

(1) The trial court, in making a finding of dangerousness under D.C.Code § 23-1325(a), must employ the standard of clear and convincing evidence; DeVeau, supra, is overruled to the extent that it contradicts this requirement.⁴ We stress, however, that this standard applies to the ultimate determination of dangerousness which the trial court must make, not to each individual fact on which the court relies. “The sum of an evidentiary presentation may well be greater than its constituent parts.” Bourjaily v. United States, 483 U.S. 171, 180, 107 S.Ct. 2775, 2781, 97 L.Ed.2d 144 (1987).

(2) In making a finding as to commission of the offense, the trial court must continue to employ the probable cause standard of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); see United States v. Salerno, supra (noting separate requirements under federal pretrial detention statute of proof of offense by probable cause and proof of dangerousness by clear and convincing evidence).⁵

(3) The trial court must continue to conduct the same type of hearing and employ the same type of discretion as set forth in United States v. Edwards, 430 A.2d 1321 (D.C.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982). We reject any notion that clear and convincing evidence cannot be established by hearsay, and we decline to erect a presumption in favor of live testimony in § 23-1325 hearings that would be destructive of the government’s legitimate need for witness confidentiality at this early stage of the proceedings. See Edwards, supra, 430 A.2d at 1338.⁶

(4) Applying the above standards to appellant’s detention, we conclude that the order of detention is supported by the proceedings below, D.C.Code § 23-1324(b) (1981), essentially for the reasons stated in the vacated division opinion. Lynch, supra, 534 A.2d at 661-62.

Ill

While this case has been pending on Lynch’s appeal challenging his pretrial detention, he was convicted of second-degree murder and sentenced to a term of imprisonment. Thus, he is no longer being detained pursuant to § 23-1325(a). At our request, the parties submitted memoranda on the impact of Murphy v. Hunt, 455 U.S. 478, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982), on our mootness doctrine enunciated in United States v. Edwards, supra, 430 A.2d 1321, at 1324 n. 2. In Murphy v. Hunt, a challenge to a pretrial detention order pursuant to Art. I, Section 9 of the Nebraska Constitution, the Supreme Court refined the federal mootness doctrine. The Court held that unless the case involved an issue which was likely of repetition between the same parties, it was moot, citing to Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam) (“class action” the only exception to the mootness doctrine). The parties in our present case agree that the decisions of the Supreme Court on the issue of mootness are not binding on this court. The United States, however, urges us to follow Murphy v. Hunt and Weinstein v. Bradford. We decline to do so. Rather, we reaffirm our holding in United States v. Edwards, supra, 430 A.2d at 1324 n. 2. The fact that a case may or may not be a quasi class action is a factor this court may consider in deciding whether to dismiss an action as moot. However, quasi class action is not a necessary condition to deciding the issue on the merits in face of a mootness challenge.

IV

For reasons generally stated in the division opinion, we reject Lynch’s other contentions.

Affirmed.

3 . Section 23-1325(a) provides:

(a) A person who is charged with murder in the first degree shall be treated in accordance with the provisions of section 23-1321 unless the judicial officer has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, the person may be ordered detained.

4 . We express no view on whether, in light of Salerno, supra, the clear and convincing evidence standard would apply to the finding of dangerousness required by the separate pretrial detention statute, D.C.Code § 23-1322, which limits pretrial detention to sixty to ninety days. See D.C.Code § 23-1322(d)(2)(A), (4) (1981 & 1988 Supp.).

5 . On the facts of this case, we need not decide whether impermissible "bootstrapping" would occur were the government to rely exclusively on probable cause plus the circumstances of the charged crime to show dangerousness by clear and convincing evidence. We are confident that the government will attempt in each case to prove either (1) more than probable cause to believe that the defendant committed the murder, or (2) additional facts manifesting the defendant's dangerousness beyond proof that he committed the offense.

6 .A trial judge may, of course, consider the hearsay character of the government’s evidence in determining whether a clear and convincing showing has been made. The trial judge may, and in appropriate cases we are confident will, require that the hearsay evidence be buttressed by otherwise admissible evidence to meet the clear and convincing standard.