dissenting:
I respectfully dissent from Judge Schwelb’s opinion reversing the trial *830court’s order of January 8, 1999 affirming its order of preventive detention relating to Jabbar K. Pope. This matter has been resolved. Pretrial detention functioned as it should have — “to protect the safety of the community until it [could] be determined whether society [might] properly punish [Mr. Pope].” United States v. Edwards, 430 A.2d 1321, 1332 (D.C.1981). The government has decided not to prosecute Mr. Pope. Consequently, he has now regained his freedom and the order of detention has been vacated. Now that the pretrial detention order has been vacated, I see no reason to render an opinion. If Judges Schwelb and Ruiz believe that this matter is not moot because it “fall[s] within the ‘capable of repetition, yet evading review’ category,” Edwards, supra, 430 A.2d at 1324 n. 2 (citations omitted), in my view, it should be considered by the full court.
Consideration by the full court is warranted because two judges have now decided an issue which, I believe, is one of exceptional importance regarding the interpretation of D.C.Code § 23-1325(a), and have broadly concluded, on the facts of Mr. Pope’s case, that it is insufficient under § 23-1325(a) to sustain an order of pretrial detention by relying on (1) probable cause that the appellant committed assault with intent to kill while armed and (2) the facts and circumstances of the charged crime. To appreciate the import of the majority decision, I believe it is important to comprehend the procedural history and the factual background of this case.
After this court remanded this matter to the trial court for further findings under D.C.Code § 23-1325, the trial court responded, in part, by saying on January 8, 1999:
This court further finds that based on the eyewitness identification there is probable cause to believe that the defendant committed the offense of assault with intent to kill while armed, this court further finds that the egregious nature in which the offense occurred establishes that the defendant is a danger to the community; lastly this court finds that based on the combination of these two factors there is clear and convincing evidence that there is no condition nor combination of conditions that will ensure the safety of the community.
During the brief November 16, 1998 proceeding following remand, the trial judge stated, inter alia:
The finding was a probable cause finding. There is more than probable cause on the event happening, but there is only probable cause on the identification. So, the court cannot make a substantial probability finding on the entire event, including the identification....
And as I said at the time of the preventive detention finding, this case was as egregious a case as I’ve ever seen on the issue of dangerousness....
There is a minimal degree to which the Court has factored the possession of cocaine, which has been expunged, recognizing that it is of little or no additional value. And so, what this case comes down to is ... probable cause, plus the nature, the egregious nature in which the offense occurred[. T]he Court concludes that there is clear and convincing evidence that there is no condition, nor combination of conditions, that will ensure the safety of the community. And it is for those reasons that the Court would order the continued preventive detention of the Defendant.
The trial court obviously considered the affidavit in support of the arrest warrant for Mr. Pope, and the testimony of Metropolitan Police Department Officer Brett Smith at the July 15, 1998 hearing on the government’s motion for pretrial detention. The arrest warrant affidavit centered on the statement of an eyewitness whose identity Officer Smith and the trial court sought to protect at the hearing by referring to the witness as “it.” The affidavit recounted the police department’s interview with the eyewitness:
*831During the course of this investigation an eye witness to this offen[s]e was located and interviewed. This witness related that it was in the area of the 800 block of Adams Street, North East Washington, D.C. on the night of the shooting. It reported that it saw two masked suspects approach the complainant and began to shoot at him. As the complainant ran, he fell between two cars and tried to hide under one of them. At this point the suspects split up one going to either side of the car. They both bent down and began to shoot the complainant while he laid under the car. After firing several times both suspects fled on foot. This witness also reported that during the time the suspects were chasing and shooting at the complainant one of the suspect[’]s masks fell down revealing his face.
This witness was shown nine color M.P.D.C. photos. This witness positively identified the defendant as the suspect [whose] mask fell down who was one of the two suspects it saw chasing and shooting at the complainant. The M.P.D.C. photo the witness identified is that of [Mr. Pope] ....
In its order of September 8, 1998, incorporated into the order of January 8, 1999, reaffirming the pretrial detention order, “[the] court found that the violent, egregious and senseless manner in which the offense was committed by the defendant underscores the danger that the defendant poses to the community.” The court also “found that an eyewitness to this offense made a positive and credible identification of Mr. Pope as the perpetrator of the offenses charged,” and that “the eyewitness was not a stranger to the defendant when it made its identification of him.”
Given the procedural history and the factual context of this case, I am not prepared to say, without the benefit of thorough supplemental briefing, that § 23-1825(a), its legislative history, and the rules of statutory interpretation mandate the result reached by the majority in this matter. Moreover, notwithstanding footnote 17, supra, I am troubled that the majority opinion may be interpreted to say that even on the evidence presented in this case where there is an alleged eyewitness who knew the alleged perpetrator, a finding of substantial probability and the egregious manner in which the crime is carried out, are not enough to sustain an order of pretrial detention. I am also troubled by the majority’s criticism of the government for “relyfing] solely on Detective Smith’s hearsay testimony to present its case for preventive detention,” even though the majority recognizes that hearsay testimony in pretrial detention matters is admissible. See Lynch, supra, 557 A.2d at 582 n. 6. Indeed, the majority in Lynch said: “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.” Id. (citing Edwards, supra, 430 A.2d at 1338).
In short, I believe that deeper consideration should be given to the exceptionally important issue resolved in this case. Consequently, I respectfully dissent.