JUSTICES QUICKLY REVERSE BOND ORDER
(Posted February 14, 2018) In early August, Fauquier County law enforcement officers arrested a man on suspicion of the first-degree murder of one of his supervisors at work. The case wended its way through the legal system, and the circuit court eventually set a trial date for March 2018.
The defendant was in custody from his arrest until January 3, on which date a judge granted a motion for him to be admitted to pretrial bail. A horrified prosecutor, concerned that a murderer was on the loose, quickly appealed the bond ruling to the Court of Appeals. On January 25, that court affirmed the ruling, no doubt because of the abuse-of-discretion standard of review.
The prosecution pressed on, filing a petition for appeal in the Supreme Court on February 1. Someone at the court must have sensed the urgency of the situation, because the defendant filed a brief in opposition four days later instead of meeting the usual 21-day deadline. I infer that the court directed the early filing.
One week later, on February 12, the justices handed down a rare GVR order, in Commonwealth v. Duse: The court grants the petition for appeal, vacates the bond order, and remands the case for next month’s trial. This is, of course, greased lightning when compared with a normal appeal; but review of bond rulings, no matter which side is the appellant, is by no means normal.
We don’t know which justice wrote the court’s per curiam order. It notes that with first-degree murder charges, the Code creates a rebuttable presumption that “no condition or set of conditions will reasonably assure Duse’s appearance or the safety of the public.” The defendant undertook to rebut that presumption, and in the trial judge’s eye, he did that.
But the court said and did some things on the record that led the justices to reverse and direct that the defendant be held in custody pending trial. The prosecution identified four ways in which it contended that the judge erred, and the justices go along with all four. First, and probably simplest, the trial court noted that the defendant, not having been convicted of anything, was entitled to a presumption of innocence. That’s true during the trial; but not at a bail hearing; indeed, the statutes create the opposite presumption with a first-degree murder charge.
Second, the Supreme Court finds that the trial judge improperly balanced the severity of the charges against the absence of a specific, current threat to the public. “The court inexplicably stated that Duse had no history of violence, ignoring that he currently was under indictment for the execution-style murder of his work supervisor.” The court notes that evidence of current specific threats isn’t part of the statute’s calculus.
Third, the Supreme Court holds that the trial court improperly speculated that the defendant wasn’t a flight risk because of his age, calling that ruling “a clear error in judgment. Given his age , his apparent ownership of a home in the Philippines, and the specter of a murder conviction, Duse has every incentive, along with the means, to flee prosecution.”
Finally, the Supreme Court chides the trial court for “wholly discounting and according no weight to Duse’s well-documented prior history of mental health disorders.” In all, the justices have no difficulty in sending the defendant back to jail to await trial.
I’ll add a couple of quick observations about the order here. First, this is the second time in the past three months that the Supreme Court has handed down a merits ruling on a Monday, instead of holding the decision for release on the normal Thursday opinion day. The previous one was another out-of-the-ordinary case, JIRC v. Pomrenke, decided in late November. In theory, the court could have done that simply for emphasis, since a Monday ruling stands out from the ordinary. But I doubt that; in both instances, I believe it’s more likely that the court simply thought that it was important to get the ruling out immediately.
Second, the Supreme Court’s new decision-notification system didn’t seem to notice this one. I subscribe to the service (naturally), but there was no ping on Monday for a new published order. I did get an e-mail on Tuesday for an update to the Appeals Granted listing, but that turned out to be a false alarm; the court didn’t announce any new writs last week.
Now, having launched and relaunched a website of my own, I will not criticize the court’s IT folks as they iron out the wrinkles. I have felt their pain.