United States v. Edwards

• Decision Date: 08 May 1981
• Docket Number: No. 80-294.,No. 80-401.,80-294.,80-401.
• Citation: 430 A.2d 1321
• Parties: UNITED STATES, Appellant, v. Marvin L. EDWARDS, Appellee. Marvin L. EDWARDS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1321

430 A.2d 1321

UNITED STATES, Appellant, v. Marvin L. EDWARDS, Appellee.

Marvin L. EDWARDS, Appellant, v. UNITED STATES, Appellee.

No. 80-294.

No. 80-401.

District of Columbia Court of Appeals.

Argued En Banc May 27, 1980.

Decided May 8, 1981.

COPYRIGHT MATERIAL OMITTED

Michael W. Farrell, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Carl S. Rauh, John A. Terry, and Michael S. Pasano, Asst. U. S. Attys., Washington, D. C., were on the motion, for appellant in No. 80-294 and appellee in No. 80-401.

Stephen H. Glickman and James H. McComas, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Mady Gilson, W. Anthony Fitch, and Mary Lou Soller, Public Defender Service, Washington, D. C., were on the motion, for appellee in No. 80-294 and appellant in No. 80-401.

William A. McDaniel, Jr. and Keven T. Baine, Washington, D. C., with whom John B. Kuhns, Washington, D. C., was on the motion, for The Washington Post as amicus curiae.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER,^* NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges.

NEWMAN, Chief Judge:

These consolidated appeals present us, for the first time, with the question of the constitutionality of the District of Columbia pretrial detention statute, D.C.Code 1973, § 23-1322, under which a suspect arrested for certain enumerated offenses may be detained for up to 60 days pending trial. In the first case, No. 80-294, the government appeals the ruling of Judge Bowers which denied pretrial detention for Marvin Edwards when the government refused to present the complaining witness for cross-examination. In the second case, No. 80-401, Marvin Edwards appeals Judge Norman's subsequent ruling granting the government's motion that he be detained. Appellant Edwards¹ challenges the proceeding as violative of his asserted constitutional right to bail, his right to a fair trial, and his right to due process, including rights of confrontation, cross-examination, and compulsory process. In addition, the government challenges the constitutionality of the partial closure of both proceedings. We find the pretrial detention statute constitutional as applied to appellant and hold the closure of the hearings improper under the First Amendment.²

I. FACTS

Marvin Edwards was arrested on March 18, 1980, and charged with the armed rape of a woman in the early morning hours of February 23, 1980. Fingerprints matching appellant's had been found at the scene, and appellant was arrested on the basis of this information. At the time of his arrest, appellant confessed both to the rape and to a forcible sodomy on another person several months before, as well as to seventeen additional robberies. A ring stolen during the course of the rape was recovered from a pawnshop where it had been pawned in appellant's name. The rape victim identified appellant at a line-up as her assailant. On the basis of this information, and on appellant's extensive juvenile record, the government moved for appellant's pretrial detention pursuant to D.C.Code 1973, § 23-1322 (a)(1), at appellant's presentment.

A hearing on the motion was set for March 25, 1980, before Judge Bowers, and continued to March 28 at appellant's request. Appellant requested the continuance in order to exercise his right to subpoena witnesses. Appellant also requested of the government any information concerning both the rape charge and any "past and present" conduct upon which the government intended to rely to show a pattern of dangerous behavior. The government declined these requests. Appellant, prior to the March 28 hearing, moved that the hearing be closed in order to protect his right to a fair trial. The government initially took no position on closure, but subsequently objected. Appellant made no proffer as to specific prejudice from articles already published, and presented no evidence that future publicity was likely. The court ordered the courtroom closed without any specific findings that closure was necessary to protect appellant's fair trial rights.³

Appellant also raised Fifth and Eighth Amendment challenges to the detention proceeding, contending that the Constitution requires a right of confrontation and of cross-examination which precludes the use of proffers or hearsay. The court agreed and ruled that hearsay would be inadmissible, and to the extent D.C.Code 1973, § 23-1322 authorized the use of proffers or hearsay, it was unconstitutional. Appellant further contended that he had a right under Blunt v. United States, D.C.App., 322 A.2d 579 (1974), to have certain material witnesses, including the rape complainant, available for cross-examination. Appellant's counsel represented that he could not subpoena the complainant because he did not know her whereabouts. The court held that appellant had a right to cross-examine the complainant without proffering how her testimony might be exculpatory, and denied the motion for pretrial detention when the government declined to present her as a witness. The government filed an appeal, No. 80-294, pursuant to D.C.Code 1973, § 23-1324(d)(2).

On April 1, 1980, appellant was charged with burglary, robbery, and sodomy arising out of a single incident on November 23, 1979, to which appellant had confessed after his arrest on the charge of rape. At his presentment on the new charges on April 1, before Judge Norman, the government again moved for detention under D.C.Code 1973, § 23-1322(a)(1). Appellant requested and received a continuance until April 4. As in the prior proceeding, appellant's counsel requested notice and discovery of the government, which was largely denied. The government did provide copies of appellant's confession before the start of the hearing on April 4. At the outset of the hearing, appellant again requested closure and the government objected. Judge Norman initially ruled in favor of complete closure. The court ruled that appellant could make a voluntary and knowing waiver of his personal Sixth Amendment right to a public trial unless the government could show a compelling interest in having an open hearing. Later, after hearing from counsel for amicus, the Washington Post, the court modified its ruling so as to exclude the press and public only during the presentation of evidence that would be inadmissible at a subsequent trial.

Appellant also renewed his constitutional objections to the pretrial detention hearing as provided for by statute. The court ruled against the appellant in each instance except one. The court construed the statute to require the government to establish by a substantial probability, without resort to hearsay, that the accused committed the charged offense. The court ruled, however, that it would admit hearsay regarding appellant's past and present conduct to show dangerousness to the community. Accordingly, the court excluded hearsay testimony regarding the complainant's line-up identification of appellant and of her report to the police of the assault. The court further ruled that because the complainant was not relied upon by the government as a witness, appellant was not entitled to compel her presence for cross-examination, and could not call her on his own behalf without a proffer that her testimony would tend to negate a "substantial probability" showing of complicity.

On the basis of the evidence presented, Judge Norman granted the motion for detention. Appellant thereupon noted an appeal, No. 80-401. The two appeals were consolidated for argument en banc before this court.

II. CONSTITUTIONAL RIGHT TO BAIL

Appellant attacks the constitutionality of the pretrial detention statute on its face as contrary to an asserted constitutional right to bail. The source for this asserted right is the "excessive bail" clause of the Eighth Amendment.⁴ Whether this clause grants a right to bail in a criminal case has never been decided in the federal courts.⁵ Before the adoption of the pretrial detention statute, Congress had always provided a statutory right to pretrial bail for federal detainees in noncapital cases.⁶ Appellant concedes that the literal language of the excessive bail clause does not encompass a right to bail, but would have us find such a right implied in the clause on the basis of the history of the adoption of the clause and its constitutional context. The history of the Eighth Amendment, however, is generally unilluminating and falls short of supporting, let alone compelling, the conclusion that a right to bail must be found by implication.

A. History of English Bail

The excessive bail clause of the Eighth Amendment was adopted almost verbatim from section nine of the Virginia Declaration of Rights of 1776,⁷ which in turn was derived from the English Bill of Rights of 1689.⁸ The excessive bail clause of the English Bill of Rights itself sought to close a loophole in the English bail system by restricting the discretion of local justices in setting bail for offenses otherwise deemed bailable. The limited nature of the excessive bail clause in its original form becomes apparent upon an examination of the evolution of the English bail system. See Duker, The Right to Bail: A Historical Inquiry, 42 Alb.L.Rev. 33, 34-66 (1977); Foote, The Coming Constitutional Crisis in Bail (pt. 1), 113 U.Pa.L.Rev. 959, 967-68, 982-83 (1965); Meyer, Constitutionality of Pretrial Detention (pt. 1), 60 Geo.L.J. 1139, 1151-56, 1180-90 (1972).⁹

The English bail system developed out of the ancient Anglo-Saxon forms of sureties into early common law bail. By the thirteenth century the local representative of the Crown, the sheriff, exercised a broad and ill-defined discretionary power to bail the King's prisoners committed to his custody. This power was widely abused by sheriffs who extorted money from individuals entitled to release without charge and who accepted bribes from those who were not otherwise entitled to bail. The first statutory...