Appeal from the Superior Court of the District of Columbia (No. F-5022-05) (Hon. Erik P. Christian, Motions Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Before SCHWELB and GLICKMAN, Associate Judges, and PRYOR, Senior Judge.
Jovanda Blackson appealed the trial court's refusal to reconsider her pretrial detention, and the parties filed cross-motions for summary reversal or affirmance. After holding oral argument and determining that we had jurisdiction to hear the appeal and that the record does not support a finding of dangerousness by clear and convincing evidence, we reversed the detention order.*fn1
This opinion explains our decision.
Appellant was arrested on August 31, 2005, and charged with corruptly obstructing the due administration of justice in an official proceeding in violation of D.C. Code § 22-722 (a)(6) (2001 & 2005 Supp.). The government moved for appellant's detention without bond pursuant to D.C. Code §§ 23-1322 (b)(1)(B), 1322 (b)(1)(C).*fn2 The trial court held a hearing on the motion on September 2, 2005.
According to Detective Michael Irving, who summarized the government's evidence, the obstruction charges against appellant arose out of her service as a juror in the May 2005 first-degree murder trial of Harry Ellis and Lamiek Fortson. After the trial ended with a hung jury, a dismayed fellow juror complained to the government that appellant had derailed the process by refusing to deliberate properly. The complaining juror reported that appellant told other jurors she knew Fortson, insisted on finding both him and his co-defendant not guilty no matter what the other jurors might say to her, told the other jurors not to talk to her, cursed at them several times, and "at one point made gestures as if taking one hand hitting the other hand, making comments while [she] was doing so." Although the juror did not report any overt threats or violent acts on appellant's part, she and others on the jury felt "threatened" by appellant's behavior.
Fortson had been detained during his trial at the Central Treatment Facility. Like other prison institutions, the facility routinely recorded all outgoing telephone calls made by its inmates.*fn3 As part of his investigation into the allegations against appellant, Detective Irving listened to Fortson's recorded telephone conversations, a large number of which were to his wife, Erica Williams. Those conversations, guarded as they were, revealed that appellant and Fortson had recognized each other during jury selection -- appellant surreptitiously winked at him -- and that appellant had communicated secretly with Fortson's wife throughout the trial. Appellant had informed Williams about the jury's deliberations, and Williams had supplied appellant with arguments to make in an effort to persuade the jury to acquit him.*fn4
Detective Irving was the sole witness at the detention hearing. Based on his testimony, the trial court found a "substantial probability" that appellant had committed obstruction of justice as charged. Appellant's motive for doing so was obscure. Government counsel observed that she did not have a close personal relationship with Fortson or Williams, and there was no evidence that she had been bribed or otherwise induced to help them.*fn5 The obstruction of justice charge against appellant was all the more surprising given her background. A twenty-seven-year-old single mother raising three young children, appellant had no prior criminal record whatsoever, nor any history of substance abuse. Until her arrest in this case, she had been employed for four years in an administrative office position at George Washington University at an annual salary of approximately $40,000.
Notwithstanding appellant's positive personal characteristics, the prosecutor asserted that no conditions on her release pending her trial would be sufficient to protect the public safety. Appellant, the prosecutor argued, had demonstrated her willingness to obstruct justice to help someone with whom she had only a "tenuous" connection; she would have a much greater incentive to obstruct justice now that her own liberty was at stake.
Relying on the "egregious" circumstances of the charged offense, the trial court decided to detain appellant. The court orally explained its ruling as follows:
The evidence this Court hear[d] basically breaches the tenets of the Constitution in this judicial system where an acquaintance, relative, wife of the defendant on trial communicates with a member of the jury during the trial and even during deliberations which causes a mistrial. That in and of itself is so egregious that this Court cannot find there are conditions or a combination of conditions that would assure the safety of this community. . . .
Appellant's counsel inquired whether the court had found by a substantial probability that appellant had threatened, injured, or intimidated a prospective juror; under D.C. Code § 23-1322 (c)(2), which counsel cited to the court, such a finding would have triggered a rebuttable presumption that no conditions of release would reasonably assure the safety of other persons and the community. In response, the court stated that it was holding appellant under D.C. Code § 23-1322 (b)(1)(C). See footnote 2, supra. Along with both appellant and the government, we ...