Sunday, March 29, 2015

Bail-Review Blues II (Round Three)

State v. Weaver, 2015 VT 44 (mem.)

By Andrew Delaney

This is technically round three of a bail-review saga. We covered the last opinion here. In the interest of economy (or, if you want to be all ugly about it, my laziness), we’re not gonna get too deep into the factual basis here. Suffice to say, there was an incident with a knife dipped in hot oil and some threats.

Based on that incident, Mr. Weaver was charged with felony aggravated domestic assault and unlawful restraint. He had a bail review hearing and was held without bail. Then he had a single-specially-assigned-judge review, which led to this opinion here, and also a continued hold-without-bail order. He appealed and this time, it’s a three-justice review. There are a whole bunch of statutes involved, but in the interest of, uh, economy, we’re going to gloss right over that complicated stuff omit those. But there’s a statute that entitles Mr. Weaver to this appeal.

Mr. Weaver hasn’t challenged the underlying factual findings or argued that the evidence of his guilt isn’t great. “The issues are whether there is clear and convincing evidence of a substantial threat of physical violence, and whether no condition or combination of conditions will reasonably prevent it.”

The three-justice panel begins with a review of the last opinion’s findings. First, there’s complainant’s testimony that Mr. Weaver oft talked of “repercussions” for people who cheat, steal, or lie to him. Second, Mr. Weaver had some pretty serious juvenile offenses and—while there was an acknowledgement that juvenile behavior isn’t as serious as adult behavior ‘cause kids can be kinda dopey—that he allegedly bragged repeatedly about this behavior was troubling.

Third, the specially assigned judge found the incident itself troubling and indicative of a volatile and dangerous personality. As alleged, Mr. Weaver got upset over a stray phone call, which led to “brandishing a knife against complainant, and threating to scar her with hot baby oil.” Fourth, there was consideration of the delay in reporting and the fact that there were no threats between the incident and Mr. Weaver’s arrest. Fifth and finally, the specially assigned judge considered that Mr. Weaver “is now aware that complainant has testified against him.”

Based on these factors, the specially assigned judge concluded that there was clear-‘n’-convincin’ evidence that Mr. Weaver’s release would mean a substantial threat of violence to the complainant.

The specially assigned judge also considered whether there was any condition or combination of conditions of release that would reasonably prevent violence. Defendant wanted to be released into his fiancée’s custody under a twenty-four-hour curfew. Said fiancée testified that she could get a good twelve weeks off, though she hadn’t run it up the proverbial flagpole at work to see if anyone saluted. So the judge wasn’t convinced that she’d make a good deputized private probation officer (of sorts—I mean, that’s obviously not how the SCOV phrases it but it’s essentially the role requested) or that she’d qualify for “family medical leave” under the circumstances.

The SCOV begins its analysis by noting, “We must affirm the specially assigned judge’s order ‘if it is supported by the proceedings below.’” Mr. Weaver’s primary argument is that this case applies and the specially assigned judge “triple counted” his two charged offenses, which is a no-no. “Too bad, so sad,” says the SCOV, “That case was about home detention, not a hold-without-bail dealy-o.” Okay, the SCOV didn’t really say anything like that. We’ve mentioned you quote these summaries at your own risk, haven’t we?

The SCOV also notes that the specially assigned judge didn’t rely on the general nature of the offenses, but rather on specific individualized factors. The judge cited Mr. Weaver’s behavior on the night in question, his willingness to use his juvenile conduct as a means of intimidation, and the nature of the threats. Overall, the SCOV concludes that this all reasonably supports the specially assigned judge’s conclusion that Mr. Weaver’s “release would pose a substantial threat of physical violence to complainant.”

Finally, the SCOV considers the uncertainty associated with the fiancée’s ability to keep a close eye on defendant, concluding that under the circumstances the specially assigned justice didn’t abuse his discretion in concluding “that the state had proved by clear and convincing evidence that no condition or combination of conditions of release will reasonably prevent physical violence. “

And so the three-justice panel affirms, and Mr. Weaver continues to be held without bail pending trial. Stay tuned for the next episode.

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