Bradshaw v. United States

BECKWITH, Associate Judge,

concurring in the result:

I concur in the result and agree with the Per Curiam opinion that the trial court on remand must make specific findings whether clear and convincing evidence exists that “no condition or combination of conditions [under D.C.Code § 23-1321(c) ] will reasonably assure ... the safety” of *399Ms. Bradshaw. D.C.Code § 23-1322(b)(2) (2001). I also agree with the Per Curiam opinion to the extent that it orders this case remanded because the trial court did not adequately apply this court’s holding that § 23 — 1322(b)(1)(C) authorizes pretrial detention for threatening conduct against a prospective witness only when the government establishes a “nexus” or “purposeful relationship ... between. the threat and the victim’s forthcoming testimony.” Covington v. United States, 698 A.2d 1033, 1036 & n. 5 (D.C.1997).

I disagree, however, with any suggestion that this court’s opinion in Covington is anything less than binding precedent interpreting the provision of § 23-1322 that pertains to pretrial detention of defendants who pose a “serious risk” to “prospective witnesses].” D.C.Code § 23-1322(b)(1)(C). As such binding authority, Covington continues to tie § 23-1322(b)(1)(C) to its “traditional moorings in obstruction, of justice jurisprudence.” 698 A.2d at 1037; see also id. at 1036 & n. 6.

The reasoning of Covington cannot be squared with the view that a trial court may apply a mere relevance standard when considering whether all of a defendant’s past conduct supports a predictive finding of serious risk to a prospective witness. Covington explicitly requires more. It stands for the proposition that for § 23-1322(b)(1)(C) to apply to a case where the defendant has threatened a prospective witness, the statute’s focus on preventing witness tampering requires that the trial judge find a connection, or “purposeful relationship,” between the past threats and the witness’s forthcoming testimony. 698 A.2d at 1036-37, 1036 n. 6. As the government notes in its opposition to appellant’s emergency motion for summary reversal of the detention order, § 23-1322(b)(1)(C) at least requires proof that “a defendant’s motive for making a threat [was] tied to the victim’s status as a witness.”

I resist, as does Covington’s explicit holding, any attempt to cloud § 23-1322(b)(l)(C)’s relationship to other distinct provisions of the pretrial detention statute that authorize detention where the defendant is accused of a crime of violence and thus demonstrates a risk of further violent conduct.4 See D.C.Code § 23-1322(b)(1)(A). Any such efforts have the potential to undermine § 23-1322(b.)(1)(C)’s foundation in obstruction of justice jurisprudence by allowing a trial judge to rely upon any past conduct with some minimal relevance to a prediction of future threats to a witness. We have said that “the defendant’s past conduct is important evidence — perhaps the most important — in predicting his [or her] probable future conduct.” Blackson v. United States, 897 A.2d 187, 195 n. 14 (D.C.2006) (quoting Pope v. United States, 739 A.2d 819, 827 (D.C.1999)). Yet we are bound to follow Covington’s holding that evidence of past threats with no nexus to the victim’s status as a prospective witness is insufficient to establish a serious risk of obstruction of justice.

We must continue to adhere to the principle that pretrial detention to prevent interference with witnesses or jurors is authorized only “in the extreme or unusual case.” Carbo v. United States, 82 S.Ct. 662, 668, 7 L.Ed.2d 769 (1962) (Douglas, Circuit Justice). To do otherwise would represent the kind of “major expansion of the availability of pretrial detention in witness intimidation situations” that this court sought to avoid with its opinion in Covington, 698 A.2d at 1036 n. 6, and would be *400inconsistent with the long-held principle that “[i]n our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Id. at 1037 (quoting United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). These concerns argue in favor of remand for the trial court to carefully weigh the appropriateness of pretrial detention here, where a 63-year-old defendant with no criminal record or history of physical abuse against his wife faces serious charges of inquiring into the possibility of having her murdered.

. The parties here agree that § 23-1322(b)(1)(C) is the only pretrial detention provision under which Mr. Bradshaw could be held.