1.OREOO} ‘GENERAL DISTRICT JUDGE ‘Wane, i COMMONW! General District ove: (40), August 18, 2017 Kevin J. Gemity, Deputy Public Defender 16 Homer Street Warrenton, VA 20186 James P. Fisher Commonwealth’s Attorney for the County of Fauquier 29 Ashby Street ‘Warrenton, VA 20186 RE: Commonwealth of Virginia v. Bernard Clark Duse, Jr. Gentlemen: This case appeared on the court’s docket yesterday afternoon for a bond hearing. The defense called two witnesses, the defendant's nieces, Linda Duse and Lory Dance, who were subjected to cross-examination, ‘The defense then requested to proffer the testimony of several other family members who were present in court, along with five letters of support ftom friends and family. That evidence was received without objection from the Commonwealth. The defense rested and the Commonwealth requested to make a proffer of its case. This went ‘without objection as well, and the Commonwealth proffered its evidence in regard to the facts and circumstances of the underlying charges and offered portions of the record of a federal court proceeding where the defendant was a self-represented litigant. Included in the Commonwealth’s proffer was a five page Medical Report by aboard certified psychiatrist completed in regard to one of Mr. Duse’s civil cases filed in federal court in May of 2006. The defense objected claiming the Commonwealth needed to lay a proper foundation. The Commonwealth’s response was that the rules of evidence do not apply in bond hearings. The defense position was that the rules of evidence do apply. Neither counsel cited authority for their positions. The issue is - Do the Rules of Evidence apply in a bond hearing? ‘The court took the issue under advisement.Kevin J. Gerrty, Deputy Public Defender James P. Fisher Commonwealth's Attomey August 18, 2017 page? ‘This matter is controlled by Rule 2:1101(c) of the Virginia Rules of Evidence. In cases subject to the jurisdiction of the General District Courts, “[e]xcept as otherwise provided by Statute or rule, adherence to the Rules of Evidence (other than with respect to privileges) is permissive, not mandatory, in. . . [c}siminal proceedings other than (j) trial [and] preliminary hearings...” The long standing practice in this jurisdiction has been to allow the use of proffers to expedite bond hearings and avoid inconveniencing witnesses. The use of proffers has been routinely used by the defense bar, including the Office of the Public Defender, as well as the Commonwealth, for years, without incident. The court is disinclined to alter the long- standing practice in this court, without any type of advance notice to the party offering the proffer. The court will receive the evaluation over the defendant's objection, and must consider the same, along with all of the other evidence adduced or proffered.! In a bail hearing, “t]he judicial officer shall presume, subject to rebuttal, that no condition or combination of conditions will reasonably assure the appearance of the person or the safety of the public if the person is currently charged with: 1. Anact of violence as defined in §19.2-297.1 2. An offense for which the maximum sentence is life imprisonment or deat! 4, A violation . . . which relates to a firearm and provides for a mandatory minimum sentence: §19.2-120 of the Code of Virginia, 1950, as amended. “The court shall consider the following factors and such others as it deems appropriate in determining, for the purpose of rebuttal ofthe presumption against bail described in subsection B, whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety ofthe publi: 1. The nature and circumstances of the offense charged; 2. The history and characteristics of the person, including his character, physical and mental condition, family tes, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, membership in @ criminal street gang as defined in § 18.2-46.1 and record concerning appearance at court proceedings; and 5, The nature and seriousness of the danger to any person or the community that would be posed by the person's releaseKevin J. Gerrity, Deputy Public Defender James P. Fisher Commonwealth's Attomey August 18, 2017 Page 3 In the case at bar, the defendant is alleged to have committed acts which bring into play the three above-referenced presumption triggering events. The evidence before the court showed that the defendant was seen by a psychiatrist for six months and was noted to have displayed “distorted thinking”, and was diagnosed with major recurrent depression, once being diagnosed by another psychiatrist as having a “paranoid personality.” ‘According to the Commonwealth's case, the defendant apparently harbored a grudge against his store manager, one of three witnesses who testified against him in an age Giscrimination case filed against CVS. It is alleged that Mr. Duse was observed as he shot his Store manager while the victim was dumping trash at their place of employment. Then, after the Victim fell to the ground from the “execution” style shot to the back of the head, he was shot again by the defendant, this time in the face. ‘The court is of the opinion that based upon the nature and circumstances of the offense and the possible danger to the other individuals who gave evidence against him, releasing the defendant would constitute a danger to the public, which overrides the testimony of good character and peacefulness attributed to the defendant by his nieces and other Joved ones. The presumption against release has not been rebutted. As Mr. Duse was advised in court, he has an Absolute right 10 appeal this decision to the Circuit Court and he should discuss his rights with counsel. Respectfully submitted, 6 Gregory Ashwell