Appeals from the Superior Court of the District of Columbia (CPO-1973-10) (CPO-3646-10) (Hon. Brian F. Holeman, Trial Judge)
The opinion of the court was delivered by: Reid, Senior Judge:
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and REID, Senior Judge.
We consolidated and expedited consideration of these appeals because they involve significant prosecutorial and procedural due process issues relating to the enforcement of civil protection orders ("CPO") under the District of Columbia‟s intrafamily offenses statute, D.C. Code §§ 16-1001, et seq., and because trial court judges have interpreted our case law and the statute in different ways, and hence have followed different procedures in these types of criminal contempt cases. In appeal no. 11-FM-1123, the government filed a motion asking us to reverse in part, and vacate in part the judgment of the trial court pertaining to appellant Kevin V. Jackson, and to remand part of his case for further proceedings. In appeal no. 11-FM-1467, the government moved to vacate appellant Victor S. Rogers‟ convictions, and to remand his case to the trial court for further proceedings.
On June 8, 2012, we issued an order reversing two of Mr. Jackson‟s criminal contempt convictions in response to the government‟s acknowledgment that there was insufficient evidence to support those convictions. We, sua sponte, severed the appeal concerning the third conviction. In addition, we ordered supplemental briefing, and we invited the Office of the Attorney General for the District of Columbia ("OAG"), and the Public Defender Service ("PDS") to file amicus briefs. On June 15, 2012, we issued an order holding the government‟s motion in Mr. Rogers‟ case in abeyance, and granting DV LEAP‟s motion to file an amicus brief.
For the reasons stated in this opinion, we hold that: (1) trial judges may initiate and preside over, but may not prosecute, a CPO indirect contempt proceeding, that is, one involving a contempt committed outside the presence of the trial judge; and (2) when the need arises for a prosecutor in an indirect criminal contempt matter relating to CPO violations in intrafamily offense cases, trial judges should first ask the United States Attorney‟s office or the OAG to prosecute the criminal contempt in the name of and pursuant to the sovereign power of the United States; if both the United States Attorney‟s office and the OAG decline to prosecute, then trial judges may appoint a private attorney to prosecute the criminal contempt in the name and on behalf of the United States. We further hold that trial judges must be scrupulously aware of due process considerations in these types of criminal contempt cases and afford a defendant due process and other protections, including a disinterested prosecutor, an impartial decision maker, an attorney, and confrontation of witnesses.
In addition, we reverse Mr. Jackson‟s remaining criminal contempt conviction in appeal no. 11-FM-1123. And, we vacate Mr. Rogers‟ criminal contempt convictions in appeal no. 11-FM-1467, and remand his case to the Family Court for further proceedings consistent with this opinion.
The record shows that the Honorable Fern Flanagan Saddler granted the petition of Schmekya West for a CPO and entered a default CPO on June 29, 2010 against Mr. Jackson, Ms. West‟s estranged husband; the CPO was served on Mr. Jackson on July 9, 2010. The CPO not only ordered Mr. Jackson to stay away from and have no contact with Ms. West, but also required him to "enroll in and complete a counseling program for alcohol [abuse]; drug abuse; and domestic violence," and to "enroll in designated programs TODAY in the Probation Office (CSOSA) [Court Services and Offender Supervision Agency]." CSOSA reported alleged violations of the CPO to the United States Attorney‟s office on August 31, 2010, November 2, 2010, March 15, 2011, April 11, 2011, and April 28, 2011.
The Honorable Brian F. Holeman convened a show cause hearing on April 29, 2011, after another trial judge had ordered Mr. Jackson to show cause why he should not be held in contempt for violating the CPO. An Assistant United States Attorney ("AUSA") confirmed that the United States Attorney‟s office would not prosecute the alleged violations of the CPO. The AUSA explained that "the [g]overnment‟s position is that . . . we‟d just like to see . . . the Respondent in this matter come into . . . full compliance with the CPO, if at all possible." Judge Holeman found the government‟s position "untenable" given Mr. Jackson‟s "extensive record of non-compliance." In light of the position of the United States Attorney‟s office, and because the OAG "is no longer involved in this case," Judge Holeman stated, "this is a matter between the [trial] [c]court and [Mr. Jackson]." He asked defense counsel for a brief addressing counsel‟s challenge to the trial court‟s authority to proceed with the show cause hearing. At the May 31, 2011 status hearing, Judge Holeman reiterated his desire for a brief from defense counsel discussing "the authority of the [trial] [c]court to go forward, notwithstanding the fact that the [g]overnment was not interested in going forward."
In response to the trial court‟s request, defense counsel maintained that the trial judge could not prosecute Mr. Jackson. Judge Holeman disagreed with defense counsel, and he cited this court‟s opinion in In re Shirley, 28 A.3d 506 (D.C. 2011), specifically the following language: "[W]hile the trial court may not extend or modify a CPO except upon motion of a party, the court may sua sponte hold an evidentiary hearing and find a defendant in contempt for violating a CPO, even where there has not been any indication of interest in further proceedings by . . . the beneficiary of the protection order." Id.at 512 (quoting Adams v. Ferreira, 741 A.2d 1046, 1047 (D.C. 1999)) (emphasis added, internal quotation marks omitted).
At the September 7, 2011 afternoon hearing, Judge Holeman called Mr. Jackson‟s probation officer (Michael Delaney) as a witness, questioned him, and ruled on objections that defense counsel made to various questions posed by the trial judge.
During defense counsel‟s cross-examination of Mr. Delaney, the trial court interrupted periodically to pronounce a question "misleading" or to make sure the record was clear.
With respect to Mr. Jackson‟s remaining criminal contempt conviction, the trial court asked Mr. Delaney how the enrollment in the "programs specified in the [CPO] was handled in Mr. Jackson‟s case." Mr. Delaney responded that to address Mr. Jackson‟s "drug and alcohol treatment ordered by the [c]court," as well as his "admission that he had mental health problems that he said needed to be addressed," CSOSA "submit[ed] a referral to its Re-Entry and Sanctions Center" ("RSC"). Mr. Delaney personally drove Mr. Jackson to the facility, which Mr. Delaney described as "a drug treatment assessment facility" with "a 28 day program." The facility has "a unit that deals exclusively with co-occurring disorders, that is, individuals who have co-occurring substance abuse and mental health problems." Mr. Delaney further explained that the RSC "is an assessment facility, that it is not a treatment facility." In answer to the judge‟s question, "[w]as there treatment planned or program formulated for Mr. Jackson," Mr. Delaney replied: "It was not, Your Honor." He added that individuals who go to the RSC are "not told they cannot leave. It‟s understood that . . . they are able to leave at any time." Mr. Jackson informed Mr. Delaney "that he would prefer to do his time in incarceration rather than continue to be under [CSOSA‟s] supervision." Consequently, as Mr. Delaney testified, "there was a staffing with Mr. Jackson, his case manager and his case manager‟s supervisor, at which time Mr. Jackson decided that he did not want to stay at the facility," and Mr. Jackson "voluntarily left at that point and did not make [further] contact with [Mr. Delaney]."
After closing argument by defense counsel, Judge Holeman announced his findings. The judge determined that Mr. Delaney‟s testimony "ha[d] not been impeached," and found beyond a reasonable doubt that Mr. Jackson had violated the CPO. The judge pronounced Mr. Jackson guilty with respect to violation of the CPO requirement that he enroll in and complete a counseling program for alcohol abuse, drug abuse, and domestic violence. The judge stated, "it‟s immaterial whether RSC is a[n] . . . assessment facility or treatment facility" so long as CSOSA "determined it appropriate to have Mr. Jackson enroll in this treatment assessment facility for the purpose of determining his future needs." The judge emphasized the CPO‟s direction that Mr. Jackson "shall enroll in designated programs today in the Probation Office (CSOSA)" in asserting ...