UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Dissenting Opinion of Chief Judge Bazelon on Appellants' Motions for Release pending appeal. 1973.CDC.16
Bazelon, Chief Judge, Tamm, Leventhal and MacKinnon, Circuit Judges. Bazelon, Chief Judge, dissenting.
[No Majority Opinion appears at this cite.]
BAZELON, Chief Judge, dissenting:
Each of these defendants was convicted of a D.C. Code offense,1 and each moved for release pending appeal under D.C. Code § 23-1325(c). The trial judges denied the motions; my colleagues uphold the denials. I recognize that we are required to affirm if the trial judge's holding is "supported by the proceedings below."2 In these cases, however, I do not find the denials to be properly supported; in my view the trial judges incorrectly applied the statutory formula governing release. I.
Prior to the passage of the D.C. Code bail revisions, release for both D.C. Code and U.S. Code offenders was governed by the federal Bail Reform Act of 1966,3 which established a preference for release pending appeal.4 In passing the D.C. Court Reform and Criminal Procedure Act of 1970,5 Congress made clear its intention to reverse that preference;6 the result was D.C. Code § 23-1325,7 which directed the courts to take a considerably harsher stance in ruling on motions for release pending appeal.8
Nonetheless, the statute does permit release in certain circumstances; it sets forth two factors relevant to the question of release:
1) The likelihood that the appellant will flee or pose a danger to persons or property; and
2) The likelihood of reversal on appeal.
In each of these cases, the trial judge considered only one of the two factors. In the Smith and Jarvis cases, the judge9 considered only the first factor; since he was unable to find that the defendants were not likely to flee or pose a danger, the judge did not discuss the substantiality of the appeal.10 Jones' motion represents the converse; there the trial judge could not find a likelihood of reversal, and so denied release with no consideration of the risk of flight or danger. I believe that both judges erred. For the reasons set forth in Parts II and III of this opinion, I think the statute requires consideration of both likelihood of flight or danger and the substantiality of the appeal in every case. II.
Failure to analyze the substantiality of the appeal -- as occurred in the Smith and Jarvis cases -- is problematic for two reasons. First, it assumes that the two statutory factors bearing on release are independent of each other. In fact, they are not independent. The likelihood that a convicted person will flee or pose a danger to persons or property is often directly related to the validity of his conviction. Thus it is normally impossible to make an adequate determination as to the risk of flight or danger without paying some attention to the strength of the appeal.
The substantiality of the appeal should be a particularly important consideration when the issues raised on appeal directly concern whether or not the defendant committed the offense for which he was convicted. The case of Smith, one of the movants here, is illustrative. Smith is appealing his conviction in the murder of Elroy Williams. This murder appears to have been a significant factor in the trial judge's determination as to Smith's dangerousness. But Smith's appeal raises a doubt as to whether he committed murder at all. Since the judge failed to consider the appeal in ruling on the motion for release, he ignored factors which challenge an important premise of his decision.
Second, consideration of the appeal is mandated by the basic rationale for permitting release on appeal -- the concern that a person may be confined under an erroneous judgment while the appeal is pending.11 Because of this concern, judges should be more receptive to a motion for release where the movant raises substantial doubt about the validity of his conviction. "Where compelling grounds for reversal are to be argued, this court has been especially reluctant to deny release pending appeal."12
The D.C. Code provisions do not preclude such consideration. The legislative history indicates that the preference for detention in the code stems from the presumption that a conviction is "correct in law" and that a person who has been sentenced to jail is "dangerous."13 Where the appeal raises substantial doubt about the conviction, these presumptions, and the preference for detention, are diminished. "There may be an offsetting consideration where the appellate court can discern that the papers demonstrate . . . that [appellant's] claims are so substantial as to undercut any presumption that might attach to the verdict and judgment as indicators that he is guilty of the violence charged in the case at bar." Banks v. United States, 134 U.S. App. D.C. 254, 259, 414 F.2d 1150, 1155 (1969) (Leventhal, J., dissenting.)
Obviously the trial judge cannot make this kind of analysis if he fails to review the substantiality of the appeal. III.
The problem posed by the trial judge's decision on Jones' motion -- analysis of the substantiality of the appeal, but failure to consider the likelihood of flight or danger -- is that such a failure provides an incomplete record for the appellate court. Under D.C. Code § 23-1325(d), this court must make a de novo finding as to the likelihood of reversal in reviewing motions for release. If we should find the appeal does raise a substantial question likely to result in reversal, we will need some information on the risk of flight or danger in order to rule on the motion for release. Where the trial judge makes no finding on this point, remand may be necessary. Such action is inefficient, unnecessary, and, as I said recently in United States v. Stanley,14 an impermissible infringement on the movant's personal freedom. IV.
For these reasons I believe proper consideration of motions for release under D.C. Code § 23-1325(c) requires analysis of both statutory factors in every case. Applying this analysis to the three motions at hand, I would dispose of them as follows:15
Smith -- Claude L. Smith was convicted of second degree murder16 and carrying a deadly weapon.17 The convictions arose out of an argument on July 3, 1971, in which Smith shot and killed Elroy Williams, using a gun he had obtained shortly before from James P. Jarvis.
Smith's defense at trial was self-defense; he maintained that he had shot Williams only after Williams lunged at him with a razor. The closest eyewitnesses on this crucial issue were two friends of Smith, Jerome Jackson and Frank Twitty. Both had accompanied Smith to the fatal confrontation with Williams. However, neither was charged by the government or even threatened with charges in connection with the shooting during the nine months between the incident and the trial.
At the trial, Jackson testified for the government that Williams did not have a razor when he was shot. Twitty was apparently prepared to testify that Williams did. Before Twitty took the stand, however, the prosecutor met him outside the courtroom and threatened him with prosecution if he testified for the defense.18 As a result, Twitty exercised his Fifth Amendment privilege and did not testify.
The prosecutor maintained that his talk with Twitty was a manifestation of his duty "as an officer of this court" to warn the witness of a potential prosecution. This is a questionable proposition. The language used was apparently more of a threat than a warning; and the prosecutor's zeal to do his duty did not extend to Jackson, who was apparently given no "warning" before testifying for the prosecution. In effect, the prosecutor made a selective grant of ...