Before Terry, Schwelb, and Farrell, Associate Judges.
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Appeals from the Superior Court of the District of Columbia
(Hon. Rafael Diaz, Trial Judge)
Farrell, Associate Judge: The juvenile transfer statute, D.C. Code § 16-2307 (1997), contains "a rebuttable presumption that a child 15 through 18 years of age who has been charged with [murder]" (among other enumerated violent crimes) "should be transferred for criminal prosecution in the interest of public welfare and the protection of the public security." § 16-2307 (e-2). In essence, the presumption is that such a youth offender is too dangerous to be left to the uncertainty of rehabilitation in the juvenile system. The trial Judge, in ordering D.R.J.'s transfer, ruled that as a juvenile charged with murder, he bore "the burden of rebutting by a preponderance of the evidence the presumption" of dangerousness.
We hold, instead, that while the statute requires the juvenile to come forward with evidence rebutting the presumption, it does not impose on him the burden of persuasion. That burden remains on the government, which, with or without the benefit of the unrebutted presumption, must prove by a preponderance of the evidence that transfer is dictated by the public safety. We hold as well that, even when the presumption has been rebutted, it retains evidentiary significance (the "bubble" does not "burst"), and the legislative determination that juveniles charged with an enumerated crime present a distinct danger to public safety may still be considered by the Judge in deciding whether transfer is required by the public welfare. Finally, we hold that any error by the trial Judge in allocating the burden of proof here was harmless in light of the evidence demonstrating that D.R.J. was dangerous and that there were no reasonable prospects of his rehabilitation in the juvenile system.
The government's motion to transfer appellant stemmed from three separate charges brought against him: two charging him with the murder of Tia Mitchell and Nathan Jones, respectively, and one charging him with assault on Duane Simmons with intent to murder. All three alleged offenses occurred when D.R.J. was 15 years old. The allegations were that he shot Mitchell to death because of her association with a person and a "crew" responsible for slaying a member of D.R.J.'s crew; that he shot Simmons - also a member of the other crew - repeatedly in the back, leaving him paralyzed; and that he shot Jones in the back of the head after apparently losing to him in a crap game. For purposes of transfer, it must be "assume[d] that the child committed the delinquent act alleged." D.C. Code § 16-2307 (e-1). At an evidentiary hearing, the Judge heard evidence concerning the twofold determination he was obliged to make, viz., whether transfer "is in the interest of the public welfare and protection of the public security and [whether] there are no reasonable prospects for rehabilitation." D.C. Code § 16-2307 (d). We defer consideration of the evidence until later, and deal first with the legal issue of what proof the juvenile need present to overcome the statutory presumption of dangerousness.
In In re J.L.M., 673 A.2d 174 (D.C. 1996), the court explained the manner in which, at least as to juveniles charged with the enumerated violent crimes, the legislature in 1993 had amended the transfer statute to make the public welfare and safety a consideration coequal in importance with the likelihood of rehabilitation of the juvenile, which theretofore had been the exclusive statutory focus. See id. at 178-79; see also In re S.M., 729 A.2d 326, 328 n.4 (D.C. 1999). In particular, we pointed out that by establishing the rebuttable presumption of § 16-2307 (e-2) applicable to such crimes, the Council of the District of Columbia "appeared to reduce if not eliminate any evidentiary burden on the District created by the new public welfare/security criterion." J.L.M., 673 A.2d at 179. *fn1 But while pointing out that, as to "cases against juveniles not involving violent crimes" the government "now has the evidentiary burden to satisfy two criteria" before transfer may be ordered, id. at 181 (emphasis added) (citing amended Super. Ct. Juv. R. 109 (c)), the court had no occasion to consider whether the presumption relating to violent crimes shifts that burden to the juvenile or instead requires a lesser showing to rebut it. That issue is presented here.
It is not an easy one to decide, as evidenced by the fact that in revising Super. Ct. Juv. R. 109 (c), the Superior Court Board of Judges (and its Rules Committee) took no apparent position on the issue. The amended rule states that "[e]xcept as provided by D.C. Code § 16-2307 (e-2), the Corporation Counsel shall have the burden of showing by a preponderance of the evidence [both that the public safety favors transfer and that there are no reasonable prospects of the offender's rehabilitation in the juvenile system]" (emphasis added). The "except[ion]" could mean either that the § 16-2307 (e-2) presumption shifts the burden of persuasion on dangerousness or that it only (but importantly) aids the District in meeting its burden of proof, especially if unrebutted. But whatever the rule means, this court's task is to construe the statute, which is itself silent on how the presumption affects the burden of proof. As the parties also agree, nothing in the legislative history sheds helpful light on the point. *fn2 We nevertheless conclude, for the reasons that follow, that the presumption was intended to place the burden of coming forward with evidence on the juvenile, but not the burden of persuasion. That is, the District retains the obligation to prove by a preponderance of the evidence that transfer is dictated by the public safety, just as it must prove no reasonable prospects of rehabilitation. See S.M., supra.
This allocation of the burden comports first of all with the fact, which the government does not dispute, that the District continues to have the burden of persuasion on the rehabilitation prong of the transfer standard. *fn3 Even with the addition of the presumption, it would be conceptually anomalous to have differing burdens of proof on factors that, as we stressed in J.L.M., supra, are closely interrelated, so much so that "the presumption typically can be rebutted only by an evidentiary showing that the juvenile is amenable to treatment or rehabilitation." 673 A.2d at 182. Furthermore, our decision in S.M., supra, which dealt with the meaning of "reasonable prospects for rehabilitation," presupposed that the government retained the burden of proof on dangerousness when it rejected the notion that the "possibility" of rehabilitation, rather than probability, was enough to defeat transfer. The legislature, we said, did not mean "to countenance [a] result" whereby "[t]he government, perhaps on the basis alone of the juvenile's failure to rebut the presumption of dangerousness, has proven that the public welfare dictates transfer[,] yet transfer fails because it has not also disproven every rational (non-fanciful) possibility of rehabilitation." 729 A.2d at 329 (emphasis added; footnote omitted).
Placing the burden of production but not persuasion on the juvenile also conforms to the way in which presumptions are generally understood. See Fed. R. Evid. 301; Graham C. Lilly, An Introduction to the Law of Evidence § 18, at 54-55 (1978 ed.); McCormick on Evidence § 342, at 450 (4th ed. 1992). This court has stated that a presumption normally may be rebutted by presentation of "proof in contradiction" of it or "evidence against the fact presumed." Green v. District of Columbia Dep't of Employment Servs., 499 A.2d 870, 874 (D.C. 1985). This impresses us as the correct test in regard to the transfer of juveniles for criminal prosecution, a decision we have termed "a vitally important one" affecting "not only the [juvenile's] length of confinement but many collateral interests such as the loss of [his] civil rights . . . ." Logan v. United States, 483 A.2d 664, 676 (D.C. 1984) (quotation marks and citation omitted). "Where the burden of persuasion lies may make a practical difference to a . . . Judge genuinely uncertain on the basis of what the parties have presented." United States v. Jessup, 757 F.2d 378, 381 (1st Cir. 1985) (Breyer, J.) (emphasis added). Given the importance of the transfer decision, we are reluctant to "interpret ambiguous [statutory] language [so as] to mandate" transfer of a juvenile where the evidence before the Judge on the issue of dangerousness "is indeterminate." Id.
Jessup interpreted a provision of the federal bail statute containing a rebuttable presumption that a person charged with a serious drug offense will likely flee before trial and/or be a danger to the community. Id. at 379; see 18 U.S.C. § 3142 (e). Federal courts of appeals considering the issue have agreed, expressly or impliedly, with Judge (now Justice) Breyer's Conclusion that this presumption shifts the burden of production but not of persuasion to the defendant. See, e.g., United States v. King, 849 F.2d 485, 488 (11th Cir. 1988); United States v. Carbone, 793 F.2d 559, 560 (3d Cir. 1986); United States v. Martir, 782 F.2d 1141, 1144 (2d Cir. 1986); United States v. Portes, 786 F.2d 758, 765 (7th Cir. 1985). The analogy to ...