State v. Fales

                                ENTRY ORDER

                      SUPREME COURT DOCKET NO. 91-408

                           SEPTEMBER TERM, 1991


State of Vermont                  }          APPEALED FROM:
                                  }
                                  }
     v.                           }          District Court of Vermont,
                                  }          Unit No. 1, Rutland Circuit
                                  }
David A. Fales                    }
                                  }          DOCKET NO. 1406-8-91 Rcr


             In the above entitled cause the Clerk will enter:

     Defendant appeals the denial of bail after his arrest for simple
assault, 13 V.S.A. { 1023(a)(1).

     On August 21, 1991, defendant was arraigned on a charge of simple
assault upon his wife on the previous day.  The assault arose out of an
argument between the defendant and his wife at their home.  During the
argument, defendant pushed and shook the victim.  Defendant verbally
threatened the life of the victim and their unborn child.  The wife managed
to escape, returning to their home to find defendant waiting for her.
Defendant again assaulted her saying he was crazy and that he was going to
kill her.  An order restraining defendant from abusing his wife had expired
three days before, on August 17, 1991.

     We assume for the purpose of deciding this bail appeal that the
exception to the right to bail for conduct constituting a "threat to the
integrity of the judicial system" is available at the outset of a criminal
proceeding.  We emphasize, however, that this assumption is not free from
doubt.  The Legislature has authorized the doctrine to be used only in
revocation of bail when a condition of release is violated.  13 V.S.A. {
7575(3).  See State v. Wood, No. 91-362 (August 15, 1991).

     The conduct forming the basis of the trial court's conclusion cannot
be characterized as constituting a threat to judicial integrity in any
significant sense.  The defendant's verbal and physical battering behavior
toward his wife may be characterized as severe, calculating, continuing and
uncontrollable.  He threatened to kill her during the course of the episode,
which the deputy state's attorney described in oral argument as rather
typical in these domestic abuse situations.  Defendant has battered women in
the past.  The threats to the well-being of the victim here, however real
and proximate to her, are too remote and attenuated from the integrity of
the criminal proceedings to dictate so sweeping a response as denial of the
right to bail.


     If we approved of the trial court's assessment, the right to bail would
be the exception and the denial of bail the rule in all but victimless
crimes.  Whenever there is a victim of crime remaining alive, an inference
may be made that the victim's well-being is in jeopardy and pressure
brought to influence testimony or the outcome of the case.

     For these reasons, we conclude the trial court's conclusion that the
integrity of the judicial process is threatened was clearly erroneous.

     Reversed and remanded for further proceedings on the issue of pretrial
release.




                                   BY THE COURT:



                                   Frederic W. Allen, Chief Justice


                                   Ernest W. Gibson III, Associate Justice


[ ]  Publish                       John A. Dooley, Associate Justice

[ ]  Do Not Publish
                                   James L. Morse, Associate Justice


                                   Denise R. Johnson, Associate Justice