State v. Blackmer

STATE_V_BLACKMER.93-149; 160 Vt. 451; 631 A.2d 1134

[Filed 23-Jul-1993]


 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 93-149


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windham Circuit

 Charles Blackmer                             May Term, 1993


Paul F. Hudson, J.

Christopher C. Moll, Windham County Deputy State's Attorney, Brattleboro,
 for plaintiff-appellee

Robert J. Appel, Defender General, and William A. Nelson, Appellate Attorney,
 Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.





 DOOLEY, J.   Defendant appeals a decision that he be held without bail,
 arguing that (1) the State did not establish that the evidence of guilt was
 great as is required by the Vermont constitution in a denial of bail; (2) even
 if the constitutional right is inapplicable, the trial court abused its
 discretion in denying bail; and (3) the denial of bail deprived defendant of
 both substantive and procedural due process of law.  We affirm.

 On January 6, 1993, defendant was served with a temporary restraining order
 for relief from abuse prohibiting him from approaching his former girlfriend.
 On January 9, 1993, he was arrested for violating the restraining order and
 then released on conditions that he abide by it.  One day later, on January
 10, 1993, he was again arrested for violating the order.  Because he had been
 released on condition he abide by the order, he was also charged with
 violating the condition of release.  On January 12, 1993, he was released on
 conditions, including that he not consume alcohol or have probable cause found
 that he had committed a felony.

 On February 23, 1993, defendant was charged with aggravated sexual assault on
 a nine-year-old girl, a crime for which the maximum punishment is life
 imprisonment.  See 13 V.S.A. { 3253(b).  The alleged crime occurred on
 February 22, while defendant was free on conditions of release from the
 earlier charges.  At the time of arrest, his blood-alcohol level was tested at
 .09%.  After a bail review hearing, the court ordered defendant to be held
 without bail, for the following reasons:

 His argument that he has "seen the light," while attractive, is less than
 convincing.  In fact, it is not believed by this court.  Were it a single
 order that had a single violation, it would be one thing.  These are multiple
 orders and have multiple violations and the court concludes that the defendant
 is simply not motivated to abide by orders of the court.

 The court referred to defendant as "seeing the light" because that was
 defendant's position as to why he should be released on conditions.

 Defendant first argues that he may not be held without bail under Vermont
 Constitution Chapter II, { 40 and 13 V.S.A. { 7553 because, although he is
 charged with an offense punishable by life imprisonment, the court could not
 find that "evidence of guilt is great."  Chapter II, { 40 of the Vermont
 Constitution for offenses not punishable by life imprisonment states that
 there is a constitutional right to bail, but there is no constitutional right
 to bail for offenses punishable by life imprisonment where the evidence of
 guilt is great.  Thus, defendant argues that the right to bail exists where a
 defendant faces a punishment of life imprisonment if the State fails to show
 that evidence of guilt is great.  Defendant argues that this is such a case.

 This Court has determined that evidence meets the constitutional threshold if
 it meets the standards of V.R.Cr.P. 12(d) for establishment of a prima facie
 case.  See State v. Duff, 151 Vt. 433, 440, 563 A.2d 258, 263 (1989).  Under
 that standard, the State must establish "by affidavits, depositions, sworn
 oral testimony, or other admissible evidence 'that it has substantial,
 admissible evidence as to the elements of the offense . . . sufficient to
 prevent the grant of a motion for judgment of acquittal at the trial.'"  Id.
 at 439, 563 A.2d  at 263 (quoting V.R.Cr.P. 12(d)(2)).  The Court emphasized
 that this standard adds two elements beyond that necessary for establishing
 probable cause:  "(1) that substantial, admissible evidence of guilt exists,
 and (2) the evidence can fairly and reasonably convince a fact-finder beyond a
 reasonable doubt that defendant is guilty."  Id. at 440, 563 A.2d  at 263
 (emphasis in original).  In a later case, this Court emphasized that this
 standard "cannot be met by inadmissible evidence." State v. Passino, 154 Vt.
 377, 381, 577 A.2d 281, 284 (1990).

 The admissibility requirement imposed in Passino and Duff refers to
 admissibility of the evidence at trial.  For purposes of analysis, we can view
 the process created by those decisions as involving two steps:  (1) whether
 the State has shown evidence that can fairly and reasonably convince a
 fact-finder beyond a reasonable doubt that defendant is guilty, and (2)
 whether the State has shown this evidence will be admissible at trial.

 Defendant asserts that the court ignored the second step and used
 inadmissible evidence in concluding that the evidence against him was great.
 This evidence included a medical record that had not been authenticated,
 V.R.E. 803; hearsay statements of the family and police that were inadmissible
 because the child victim was not available to testify, V.R.E. 804a(a)(2) and
 (3); and a statement of the child victim that did not name the perpetrator and
 was not analyzed for trustworthiness, V.R.E. 804a(b). Although the basis for
 the court's ruling is somewhat confusing, especially in separating out
 admissibility in the bail hearing from admission at trial, we agree that the
 court failed to go through the second step of the process.  Thus, the bail
 hearing record does not show that at least part of the evidence considered by
 the court will be admissible at trial.  For example, without a foundation,
 there is no showing that the medical record will be admissible, a defect
 admitted by the State at the bail hearing.

 The State argues correctly that it may proceed by affidavits. V.R.Cr.P.
 12(d)(2).  The child victim's affidavit, although it does not name the
 perpetrator, provides admissible evidence that a crime was committed, the
 details of the crime, and the availability of the victim to testify.  It in
 turn supports the admissibility of the evidence offered in the affidavits of
 her mother and another family member by stating the age and availability of
 the minor.  See V.R.E. 804a(a)(1), (3).  These affidavits recount the victim
 telling them what transpired and naming defendant as the perpetrator. The
 victim's statement occurred shortly after the alleged assault such that "the
 time, content and circumstances of the statements provide substantial indicia
 of trustworthiness."  V.R.E. 804a(a)(4); see State v. Duffy, ___ Vt. ___, ___,
 605 A.2d 533, 535 (1992).  Thus, the record establishes that the evidence of
 the family members will be admissible under the hearsay exception for
 statements from minor victims of sexual assault crimes.  See V.R.E. 804a. Once
 this evidence is considered, the State has shown that evidence of guilt is
 great.

 We caution that although the record clearly shows the evidence will be
 admissible in this case, that will not always be so.  Trial courts have
 discretion in the admission of evidence, and normally that discretion must be
 exercised to determine whether evidence proffered by the State at the bail
 hearing will be admissible at trial.  Failure to do so will often mean that
 defendant retains the constitutional right to bail.

 Defendant makes three arguments why the denial of bail is erroneous even
 though there is no constitutional right to bail.  Before addressing them
 specifically, we emphasize the narrowness of the question before us. We had
 occasion recently to explore the constitutional right to bail and the limits
 it places on the Legislature or the courts to deny bail in specific cases. See
 State v. Sauve, ___ Vt. ___, 621 A.2d 1296 (1993).  Except in very limited and
 special circumstances where the State's interest is legitimate and compelling,
 a court may not deny bail in the face of the constitutional right. ___ Vt. at
 ___, 621 A.2d  at 1301.  The Sauve requirements, to the extent they are based
 on the Vermont constitutional right to bail, do not apply in this case.
 Instead, the issue we address is whether in the absence of the constitutional
 right the court may deny bail because of a substantial and very recent record
 of violations of important conditions of release.

 We also emphasize that we are not conducting a de novo proceeding on whether
 to grant bail in this case.  Our standard of review is set forth in the
 applicable statute.  We must affirm the trial court's decision if it is
 supported by the proceedings below.  13 V.S.A. { 7556(b).

 Defendant's first argument is that the trial court decision is an abuse of
 discretion.  We have held that even where there is no constitutional right to
 bail the trial court has the discretion to grant bail.  See Duff, 151 Vt. at
 441, 563 A.2d  at 264.  We have never comprehensively defined the breadth of a
 trial court's discretion.  Our recent precedents recognize the existence of
 discretion without setting specific standards for its exercise. See Passino,
 154 Vt. at 379, 577 A.2d  at 283; Duff, 151 Vt. at 441, 563 A.2d  at 264.
 Although the Legislature has specifically defined the right to bail where the
 Vermont constitutional provision applies, it has provided only that a
 defendant charged with a crime punishable by life imprisonment "shall not be
 bailable as a matter of right" when the evidence of guilt is great. 13 V.S.A.
 { 7553.

 We have, however, defined the court's discretion sufficiently to address this
 case.  The decision that forms the basis of our current law is In re Dexter,
 93 Vt. 304, 314-15, 107 A. 134, 138 (1919), which first enunciated the
 discretion of the trial court to grant bail where the constitutional right is
 inapplicable.  The Court noted that the discretion involved is "sound,
 judicial discretion, controlled by certain and well defined and established
 rules," but failed to describe those rules.  Id. at 315, 107 A.  at 138.  It
 did state:

 Ordinarily, in practice, bail is refused after indictment found, in capital
 cases, where the proof of guilt is evident or presumption great; but we are
 not called upon to define more particularly the practice or controlling
 features in such cases generally . . . . Had the county court exercised its
 discretion in determining the question, very likely we should leave the matter
 as there determined, let it be either way, without further consideration.  But
 the court . . . decided against the relator as a matter of law.  This it could
 not lawfully do.  The relator was entitled to the benefit of the court's
 judicial discretion, and it not being accorded her, she was deprived of her
 right in that behalf.

 Id.  The defendant in Dexter had been acquitted, but the State obtained a new
 trial and the issue involved her right to bail at the second trial.  The Court
 concluded that the circumstances ordinarily were sufficient to allow the
 defendant to have bail, but left the question entirely to the trial court.

 Duff follows up on the language of Dexter, suggesting the considerations are
 similar to those in determining the right to bail post- conviction.  See 151
 Vt. at 441, 563 A.2d  at 263-64.  We required a hearing on whether the court
 should allow bail, but added that "the trial court is under no obligation to
 set any conditions of release as a result of that hearing."  Id. at 441, 563 A.2d  at 264.

 The holdings in Duff and Dexter are similar to those in other states that
 have explored the issue.  For example, the Massachusetts Supreme Judicial
 Court explained the standard as follows:

 [B]ail in such a case is not a matter of right but is discretionary with the
 judge, who is to give due weight to the nature and circumstances of the case.
 On the subject of discretionary bail in capital cases, Blackstone's
 observations are no less pertinent today than they were two hundred years ago.
 "And herein," he said, "the wisdom of the law is very manifest.  To allow bail
 to be taken commonly for such enormous crimes, would greatly tend to elude the
 public justice: and yet there are cases, though they rarely happen, in which
 it would be hard and unjust to confine a man in prison, though accused even of
 the greatest offense."  4 Blackstone, Commentaries (8th ed.) 299.

 Commonwealth v. Baker, 177 N.E.2d 783, 786 (Mass. 1961) (citations omitted);
 see also Arthur v. Harper, 371 So. 2d 96, 100 (Fla. Dist. Ct. App. 1978)
 ("bail should not be routinely granted in such cases, but rather a heavy
 burden should be placed upon the defendant to clearly demonstrate that he is
 entitled to bail despite the gravity of the offense and the nature of the
 punishment he faces"), aff'd, State v. Arthur, 390 So. 2d 717 (Fla. 1980).

 We draw three points from Duff, Dexter, and the cases from other states:  (1)
 in cases where the constitutional right does not apply, the presumption is
 switched so that the norm is incarceration and not release (FN1); (2) the
 trial court's discretion is extremely broad; and (3) the trial court must
 exercise its discretion after giving the defendant an opportunity to be heard.
 Each of those points support affirmance in this case.  The trial court held a
 hearing and exercised its discretion.  Its rationale is not arbitrary.  If its
 discretion is broad and release is reserved only for extraordinary cases, we
 must conclude that the decision is supported by the record.

 It is appropriate to briefly address the trial court's rationale. Conditions
 of release have become commonplace and are issued in every case to minimize
 the risk of flight and to protect the judicial process and the rights of
 participants, particularly the complaining witness, as well as the public.
 Non-monetary conditions are widely endorsed nationally as the least
 restrictive method of assuring appearance and preventing the commission of
 further crimes.  See II American Bar Ass'n, Standards for Criminal Justice,
 Standard 10-1.3(c) (2d ed. 1980).  Appropriate conditions "impose reasonable
 restrictions on the activities, movements, associations, and residences of the
 defendant" as well as prohibiting the defendant from "using intoxicating
 liquors or certain drugs."  Id. Standard 10-5.2(c), (d). The Legislature has
 recognized the importance of conditions of release by allowing revocation of
 bail for violation of conditions of release in certain circumstances.  See 13
 V.S.A. { 7575.  When the need for conditions is viewed in light of the
 possible punishment of life imprisonment, it is entirely appropriate for the
 court to deny bail unless it is fully convinced that the defendant will abide
 by the conditions that would be imposed if defendant were released.  The trial
 court was not convinced here.

 Next defendant argues that the bail denial decision deprives him of
 substantive due process of law because the court did not find he was a risk of
 flight or a danger to the public.  He derives these requirements from United
 States v. Salerno, 481 U.S. 739, 741 (1977), where the United States Supreme
 Court upheld provisions of the federal Bail Reform Act, 18 U.S.C. { 3142(e) --
 which permits pretrial detention for certain offenses to prevent danger to the
 community -- against a challenge that it violated the Fifth Amendment
 guarantee of due process.

 We find Salerno to have only limited applicability in this case. Because it
 upholds the federal statute, there is no definitive ruling that any element of
 that statute is constitutionally required. (FN2) More important, the federal
 statute is very clearly a preventive detention measure, and the due process
 discussion is tailored to that purpose and effect.  Cases that have taken
 clear principles and limits from Salerno have similarly involved specific
 preventive detention statutes.  See, e.g., Aime v. Commonwealth, 611 N.E.2d 204, 206 (Mass. 1993); Witt v. Moran, 572 A.2d 261, 262 (R.I. 1990).  With
 these limits in mind, we derive three applicable due process requirements from
 Salerno:  (1) bail cannot be denied in order to inflict pretrial punishment;
 (2) pretrial detention cannot be excessive in relation to the regulatory goal,
 and (3) the interests served by the detention must be legitimate and
 compelling.  481 U.S.  at 747, 749.

 In applying these requirements to this case, it is important to understand
 what interests underlie the court's action.  The separate treatment of life
 imprisonment cases in Vermont's constitution indicates that such crimes are
 treated "as a surrogate for a high risk of flight."(FN3) Sauve, ___ Vt. at
 ___, 621 A.2d  at 1301.  As applied to this case, a defendant who has a recent
 record of violating important conditions of release is an increased risk of
 flight when facing possible life imprisonment.  There is also an increased
 risk of violence to the complainant and witnesses in this case.  Given the
 importance of non- monetary conditions of release to the administration of
 criminal justice, a judge's determination that a defendant will not abide by
 conditions of release implicates all functions of pretrial detention.

 While denial of bail here is viewed by defendant as a form of preventive
 detention, there is no indication that this purpose entered the trial court's
 decision.  The fundamental distinction between preventive detention and
 detention for violation of conditions of release was recognized by the Rhode
 Island Supreme Court in  Mello v. Superior Court, 370 A.2d 1262, 1265 (R.I.
 1977).  There, the court upheld an order revoking bail after the defendant had
 committed a second offense while on bail.  The court found that the bail
 revocation did not involve preventive detention:

 It has been argued that allowing a trial court to revoke release in this
 manner treads perilously close to the precipice of preventive detention.  We
 have a different view of the terrain. . . . [Defendant] was not denied release
 on his second charge in order to protect the public.  He was detained because
 he violated a reasonable condition of his original release. . . . The
 authority of the court to revoke bail in certain situations ought not to be
 construed as authority to exercise preventive detention.  The former is a
 sanction for past acts, the latter is a prophylactic for the future.  We are
 concerned with the former.

 Id.; see also People ex rel. Hemingway v. Elrod, 322 N.E.2d 837, 841 (Ill.
 1975) (revocation of bail for violation of condition of release is not
 preventive detention); see generally State v. Ayala, 610 A.2d 1162, 1173- 74
 (Conn. 1992) (adopting Mello rule and collecting similar cases from other
 states).  Although Mello dealt with a different form of action -- that is,
 revocation of bail rather than denial -- that difference in form is not
 significant in understanding the interests involved.

 Returning to the Salerno requirements, we find nothing punitive in the trial
 court's action.  The trial judge made clear that the court was concerned with
 future compliance with conditions of release.  It was not concerned with
 punishing defendant for past actions, only with whether defendant was an
 acceptable risk in view of his recent track record.  Thus, the court
 considered defendant's argument that he had "seen the light" and would comply
 in the future and specifically rejected it in denying bail.

 Nor can the court's actions be considered excessive in light of the interests
 involved.  In analyzing this factor in Salerno, the Supreme Court gave the
 most weight to the fact that preventive detention was limited "to the most
 serious of crimes."  481 U.S.  at 747.  The class of cases for which there is
 no Vermont constitutional right to bail is even narrower, and this defendant
 faces possible life imprisonment.

 The class of defendants is further narrowed here by the recent history of
 noncompliance with significant conditions of release.  The court is not
 speculating about future compliance from a blank record.

 Defendant reads into the Salerno language a specific command that the court
 relate its actions to the ultimate interests of risk of flight and preventive
 detention.  Such a command would elevate form over substance and be
 inconsistent with our limited standard of review.  Once the court determines
 that defendant cannot be trusted to comply with conditions of release, the
 effect on risk of flight and other bail interests becomes obvious.  On this
 point, we note that Congress has adopted a similar rationale for detention by
 creating a presumption that persons who have been convicted of offenses while
 on bail are dangerous; if unrebutted, this presumption allows for preventive
 detention with no specific finding of dangerousness.  See 18 U.S.C. { 3142(e).
 The Bail Reform Act presumptions have been upheld as constitutional.  See
 United States v. Jessup, 757 F.2d 378, 387 (1st Cir. 1985); see generally
 Comment, When Preventive Detention is (Still) Unconstitutional:  The
 Invalidity of the Presumption in the 1984 Federal Bail Statute, 61 S. Cal. L.
 Rev. 1091, 1120-22 (1988) (arguing that the presumption based on criminal
 activity while on bail is constitutional).  The rationale for the presumption
 is that a "'history of pretrial criminality is, absent mitigating information,
 a rational basis for concluding that a defendant poses a significant threat to
 community safety and that he cannot be trusted to conform to the requirements
 of the law while on release.'"  United States v. Coyne, 800 F. Supp. 1018,
 1020 (D. Mass. 1992) (quoting S. Rep. No. 225, 98th Cong., 1st Sess. 19,
 reprinted in 1984 U.S. Code Cong. & Admin. News 3202).  At worst, the trial
 judge used a similar presumption here, presuming from multiple violations of
 conditions of release that no combination of conditions of release would
 ensure defendant's presence at trial or the safety of the alleged victim and
 witnesses and the public.  That presumption was unrebutted by defendant.

 In response to the third Salerno requirement, we find the interests protected
 by this order to be legitimate and compelling.  They are the traditional
 interests on which conditions of release are determined, magnified because of
 the severe penalty faced by defendant.

 Finally, defendant claims that the denial of bail deprives him of procedural
 due process.  In holding that the Bail Reform Act does not deny due process of
 law, the Supreme Court in Salerno itemized the procedural protections built
 into the Act:  (1) right to counsel; (2) opportunity of the defendant to
 testify and present information; (3) opportunity to cross- examine opposing
 witnesses; (4) statutory factors governing the preventive detention decision-
 making process; (5) a requirement of findings of fact and a statement of
 reasons for the decision; and (6) a requirement of proof by clear and
 convincing evidence.  481 U.S.  at 751-52.  Decisions following Salerno have
 interpreted all or most of these attributes of the federal law as minimum
 requirements of procedural due process.  See Aime v. Commonwealth, 611 N.E.2d 
 at 214; Witt v. Moran, 572 A.2d  at 267.  Because of the liberty interest
 involved, procedural requirements are necessary to ensure accurate decision
 making whether or not the Vermont constitutional right to bail applies.  We
 agree with those courts that view most or all of the procedural protections of
 the federal law as necessary for the state scheme to comply with procedural
 due process.

 Except for the standard of proof, the decision in this case meets the
 requirements of procedural due process in the context of the Vermont bail
 decision-making scheme.  Review in this Court provides the necessary check
 against unbridled discretion, and the decision in this case is based on
 findings and reasons.  The court's decision does not, however, specify the
 standard of proof applied by the trial judge.  We do not believe that the
 absence of a statement of the standard of proof is grounds to reverse this
 decision.  Defendant never raised the standard-of-proof issue in the trial
 court and never contested the underlying facts.  See In re G.S., 153 Vt. 651,
 652, 572 A.2d 1350, 1351 (1990) (failure to raise constitutional attack on
 standard of proof in trial court precludes review in this Court where Court
 cannot find that standard of proof had any effect on outcome of case). In
 fact, defendant's counsel appeared to admit at least some of the violations of
 conditions of release.  Defendant's position in the trial court was that he
 now saw the error of his ways, had a new attitude and would abide by
 conditions of release in the future.  In view of this position, the failure of
 the trial court to specify the standard of proof used was not plain error.
 We are setting standards for the small group of serious crimes where the
 maximum punishment is life imprisonment and where the evidence against
 defendant is such that there is no constitutional right to bail.  In
 determining the effect that actions of the defendant may have on the
 appropriateness of bail, we must keep in mind the severe punishment defendant
 is facing.  See Salerno, 481 U.S.  at 747 (denial of bail not an excessive
 response to problem of offenses committed while defendant is on bail in part
 because denial of bail is limited to only "most serious of crimes").  In such
 a situation, the trial judge must have the discretion to deny bail to a
 defendant who is found to have committed serious, multiple and recent
 violations of bail conditions.  That discretion was not abused here.

 Affirmed.

FN1.    Unlike the dissent, we have separated the analysis under { 40 of the
 Vermont Constitution from that under the Fourteenth Amendment to the United
 States Constitution.  If the trial court had relied on a general presumption
 of incarceration without more, we would agree that serious due process
 concerns would be raised.  Because this is not what the trial court did, we
 have not analyzed this hypothetical circumstance for due process purposes.
 Thus, we do not believe we have endorsed the "extraordinary proposition" that
 a "presumption . . . [of] liberty pending trial is 'reversed,'" as the dissent
 claims.  Our holding here is only that the denial of bail is consistent with {
 40 and our law on pretrial release in cases where there is no Vermont
 constitutional right to bail.  Our holding on due process is set forth infra.

FN2.    We have no statute that governs release in cases where the Vermont
 constitutional right to bail is absent, and nothing in Salerno states we must
 have one to comply with due process.  Although defendant does not argue so,
 the dissent concludes that either there must be a statute or we must set the
 standards, apparently in statutory form.  We see no constitutional impediment
 to deriving standards from analysis of individual cases against the Salerno
 principles in light of the standard of review.  The statutory scheme allows
 speedy and meaningful appeal of condition of release disputes to this Court.
 See 13 V.S.A. { 7556.

FN3.    We recognize, as the dissent argues, that this relationship may not
 hold true if the Legislature adopts a theoretical life imprisonment punishment
 for crimes where there is no serious risk any defendant will ever be sentenced
 to life imprisonment.  Further, as is currently proposed, the constitutional
 right may be narrowed further to allow denial of bail in other circumstances
 or to implement other purposes.  Neither of these circumstances is present
 here.

-----------------------------------------------------------------------------
                                Dissenting

 Johnson, J., dissenting.  Today, the Court holds that, in cases in which a
 sentence of life imprisonment may be imposed, the presumption that an accused
 should remain at liberty pending trial is "reversed" so that the presumption
 becomes that the accused should be incarcerated.  This extraordinary
 proposition finds no support in our precedents or in those of the United
 States Supreme Court.  Nor is it compelled by, or even a logical conclusion
 from, Vermont's constitutional and statutory provisions that, in capital or
 life imprisonment cases, where evidence of guilt is great, the defendant shall
 not be bailable as a matter of right.  On this ground alone, I am compelled to
 dissent.

 Regrettably, the Court compounds its error by sanctioning a bail
 decision-making process that is both entirely without standards and completely
 unreviewable by this Court.  I do not think that such a holding comports with
 due process or is consistent with this Court's responsibility to provide
 appellate review of trial court decisions.

                                    I.

 Under United States v. Salerno, 481 U.S. 739 (1987), both substantive and
 procedural due process safeguards protect bail decision making. Substantive
 due process protects an individual from government interference with "rights
 'implicit in the concept of ordered liberty.'"  Id. at 746 (quoting Palko v.
 Connecticut, 302 U.S. 319, 325-26 (1937)).  Procedural due process guarantees
 that any permissible governmental interference with a right is done in a fair
 manner.  Id.

 Both due process analyses begin with an examination of the individual
 interest threatened by governmental action.  Under substantive due process, if
 governmental action threatens a right deemed "fundamental," then courts "must
 examine carefully the importance of the governmental interests advanced and
 the extent to which they are served by the challenged regulation," Moore v.
 East Cleveland, 431 U.S. 494, 499 (1977), and uphold the government action
 only if it is narrowly tailored to further a "legitimate and compelling"
 governmental interest.  Salerno, 481 U.S.  at 749-50.  Procedural due process
 imposes constraints on any governmental decision that would deprive an
 individual of liberty or property, Mathews v. Eldridge, 424 U.S. 319, 332
 (1976)), requiring that any procedure used to effectuate such a deprivation be
 analyzed by balancing the protected interest against any governmental
 interests, taking into account the risk of erroneous deprivation.  Id. at 335.

 Thus, both substantive and procedural due process apply to bail decisions,
 not because of any constitutional right to bail, but because liberty is a
 fundamental right independently guaranteed.  "Freedom from bodily restraint
 has always been at the core of liberty protected by the Due Process Clause
 from arbitrary governmental action."  Foucha v. Louisiana, 112 S. Ct. 1780,
 1785 (1992).  See also Aime v. Commonwealth, 611 N.E.2d 204, 210-11 (Mass.
 1993) (tracing central importance of liberty in Anglo- American common law and
 constitutional law and concluding that freedom from governmental restraint
 "lies at the heart of our system of government and is undoubtedly a
 fundamental right").

 Those charged with crimes who come before the court for bail decisions are
 not criminals.  They are merely accused, not convicted; they enjoy a right to
 liberty by virtue of the presumption of innocence.  "The principle that there
 is a presumption of innocence in favor of the accused is the undoubted law,
 axiomatic and elementary, and its enforcement lies at the foundation of the
 administration of our criminal law."  Coffin v. United States, 156 U.S. 432,
 453 (1895).  The presumption cannot be legislated away; it is part of the
 right to fair trial protected by the fourteenth amendment.  Estelle v.
 Williams, 425 U.S. 501, 503 (1976).  Consequently, those accused of crimes are
 on the same legal footing as other non-criminal persons facing possible
 deprivations of liberty.  Although governmental needs may outweigh an
 individual's liberty interest,  Salerno, 481 U.S.  at 748, liberty, even for
 the accused, "is the norm, and detention prior to trial or without trial is
 the carefully limited exception."  Id. at 755. See also State v. Duff, 151 Vt.
 433, 440, 563 A.2d 258, 263 (1989) (pretrial detention "necessarily cuts
 against the presumption of innocence inherent in our criminal jurisprudence"
 and is therefore limited).

 Instead of guaranteeing that detention will be a "carefully limited
 exception," the majority begins with the dubious proposition that if defendant
 has no constitutional right to bail, the presumption in favor of liberty is
 somehow "switched so that the norm is incarceration and not release."  Neither
 Salerno nor any other United States Supreme Court case supports this
 presumption.  Nor do I find support for it in Duff or In re Dexter, 93 Vt.
 304, 107 A. 134 (1919), the two Vermont cases cited by the majority.  Even if
 there were support in the later two cases, I would discount it.  They are not
 due process cases, and whether the court abused its discretion in denying bail
 can only be meaningfully examined in a due process context.  Salerno provides
 that context.

 Under Salerno, the initial due process burden is on the state.  To overcome
 the accused's right to liberty, it must show a "legitimate and compelling"
 governmental need.  Preventive detention for the safety of the community is
 the most frequently recognized need.  See Ludecke v. Watkins, 335 U.S. 160,
 171-72 (1948) (approving unreviewable executive power to detain enemy aliens
 during war); Carlson v. Landon, 342 U.S. 524, 537-42 (1952) (detention of
 Communist resident aliens pending deportation proceedings); Addington v.
 Texas, 441 U.S. 418, 426 (1979) (detention of dangerous mentally unstable
 individuals); Salerno, 481 U.S.  at 750 (detention of dangerous criminal
 defendants).  Other compelling interests recognized in the criminal context
 are risk of flight and danger to witnesses.  Id. at 749.

 Nothing in the Vermont constitution or bail statutes explicitly states a
 compelling governmental interest to be served by denying bail.  Chapter II, {
 40 of the Vermont constitution provides:

 All persons, unless sentenced, or unless committed for offenses punishable by
 death or life imprisonment when the evidence of guilt is great, shall be
 bailable by sufficient sureties.  Persons committed for offenses punishable by
 death or life imprisonment, when the evidence of guilt is great, shall not be
 bailable as a matter of right.

 This provision only identifies a class of people who are not bailable as a
 matter of right -- those subject to penalties of death or life imprisonment
 where evidence of guilt is great.  The relevant statute, 13 V.S.A. { 7553,
 tracks the constitution:

 A person charged with an offense punishable by life imprisonment when the
 evidence of guilt is great shall not be bailable as a matter of right.  If the
 evidence of guilt is not great, the person shall be bailable in accordance
 with section 7554 of this title.

 Thus, { 7554 guides the trial court's decision-making process in all bail
 cases except when the accused has no right to bail and evidence of guilt is
 great.  In the latter cases, bail is left to the trial court's discretion.
 Duff, 151 Vt. at 441, 563 A.2d  at 263.

 The bail amendment and corresponding statute manifest two governmental
 interests.  Seriousness of potential punishment is a surrogate for seriousness
 of the crime; great evidence of guilt of the charged crime is a surrogate for
 likelihood of conviction.  The only persons not bailable as a matter of right
 are those who meet both criteria.  This combination suggests that the
 strongest governmental interest manifest in our bail scheme is potential for
 flight: those most likely to be convicted of crimes carrying the most severe
 punishments are the most likely to flee.  Preventing danger to the public is a
 secondary -- and, for purposes of due process balancing, a weaker -- interest.
 If potential dangerousness were the primary interest, then no one accused of a
 crime, who demonstrated a propensity toward violence, would be bailable as of
 right.  Legislative history of the 1982 bail amendment, the current version of
 { 40, shows that such a broad approach to dangerousness was specifically
 rejected.  State v. Sauve, ___ Vt. ___, ___, 621 A.2d 1296, 1300 (1993).

 Detention for violations of prior conditions -- the reason relied on by the
 trial court and affirmed by the majority -- is neither explicitly nor
 implicitly a governmental interest to be vindicated under our bail scheme. See
 id. at 1301 (bail revocation for repeated violations of conditions does not
 rise to the level of a compelling governmental interest).  Such violations
 should be relevant only to the extent that they bear on governmental interests
 that are part of the bail scheme -- preventing flight, and to a lesser extent,
 minimizing danger to the public.  The trial court did not find defendant was
 at risk to flee or endanger the public. Likewise, it did not conclude that his
 prior violations rendered him a greater risk to flee or endanger the public.
 Its only conclusion was that "defendant is simply not motivated to abide by
 orders of the court."  This reasoning is far too broad to satisfy due process.

 Moreover, even if we accept that our current bail scheme has, as a
 governmental interest, preventing danger to the public, I do not understand
 how the majority moves from recognizing that interest to creating a
 presumption of incarceration for all those without a right to bail.  We are
 not free to interpret our bail provisions -- statutory or constitutional -- in
 a way that violates the fundamental right to liberty guaranteed by the
 Fourteenth Amendment to the United States Constitution.  Hence, we cannot
 meaningfully analyze { 40 in isolation from the requirements of the due
 process clause as discussed in Salerno.  Salerno allows for a presumption of
 dangerousness, if appropriately limited, but the legislature has simply not
 created one here.  Rather, it merely gave courts the discretion to deny bail
 to some defendants, and Salerno limits how courts can exercise that
 discretion.  Under Salerno, even a presumption of dangerousness is only the
 beginning of a carefully limited inquiry into whether the accused is in fact
 dangerous.  And even if the accused is found -- not presumed -- dangerous, the
 court must still inquire whether incarceration is necessary to prevent the
 danger.  The only presumption that I find any support for is the presumption
 of innocence.

                                    II.

 Assuming that our bail scheme manifests a legitimate governmental interest,
 it is still inadequate under Salerno.  Due process requires that a bail
 decision be narrowly tailored to effectuate a compelling governmental
 interest.  Here, no statutory factors guide the trial court's discretion.
 Neither today's opinion nor prior Vermont case law provides any such
 guidelines.  Instead, the majority relies on Dexter, 93 Vt. at 315, 107 A.  at
 138, for the proposition that if the exercise of discretion is "controlled by
 certain and well defined and established rules," then "we would leave the
 matter as there determined, let it be either way, without further
 consideration."  This would be an unremarkable proposition except the "well
 defined and established rules" are not articulated in Dexter or any other
 case.  Apparently the majority believes that as long as the trial court
 follows unstated rules, this Court must rubber stamp the result.  This is not
 the strict scrutiny required by due process; it is no scrutiny at all.

 The closest this Court has come to making "well defined and established
 rules" is Duff, which suggests that the trial court look at considerations
 similar to those used in determining postconviction bail.  151 Vt. at 441, 563 A.2d  at 263-64 (citing with apparent approval Fountaine v. Mullen, 336 A.2d 1138, 1144 (R.I. 1976).  Today, the Court, while apparently citing Duff with
 approval, takes a step back from that decision by failing to apply any such
 standards.  Postconviction bail decision making is controlled by statute.  See
 13 V.S.A. { 7574 (judge shall consider factors set forth in 13 V.S.A. {
 7554(b) and defendant's conduct during trial and the fact of conviction) and
 13 V.S.A. { 7554(b) (judge shall look at "nature and circumstances of the
 offense charged, the weight of the evidence against the accused, the accused's
 family ties, employment, financial resources, character and mental condition,
 the length of residence in the community, record of convictions, and record of
 appearance at court proceedings or of flight to avoid prosecution or failure
 to appear at court proceedings"; judge may also consider any "[r]ecent history
 of actual violence or threats of violence" as bearing on the "character and
 mental condition of the accused").  The majority does not adopt these or any
 such guiding considerations for pretrial bail decisions.  We are left with an
 irrational result: persons merely accused of crimes, who still enjoy a
 presumption of innocence, are given less due process protection than those
 convicted of crimes, who are no longer entitled to that presumption.

 The legislature, of course, could pass a statute setting standards for
 release of those not entitled to bail.  It has not done so and need not do so,
 but, in the absence of such a statute, due process requirements apply no less
 rigorously.  This Court must either set standards for principled bail decision
 making or require that the trial court set and apply such standards.  Neither
 was done here.

 In Salerno, the Court upheld the federal bail act because it found the act
 appropriately balanced the government's need to protect the community from
 dangerous defendants with numerous provisions protecting defendants. See 481 U.S.  at 751.  Clarification of what due process requires in denial- of-bail
 decisions is provided in Aime, 611 N.E.2d 204, and Witt v. Moran, 572 A.2d 261
 (R.I. 1990).

 In Aime, the Massachusetts Supreme Judicial Court struck down, on due process
 grounds, recently enacted amendments to its state's bail law, which provided
 that a judge may exercise discretion to refuse bail to any person whose
 release will endanger the safety of any person or the community.  611 N.E.2d 
 at 206.  Analyzing the Massachusetts statute under Salerno, the court held
 that the state could not enact a preventive detention scheme "without
 providing safeguards similar to those which Congress incorporated into the
 Bail Reform Act."  Id. at 212.  The court found the bail amendments fatally
 defective, in many ways not applicable here, but was especially critical of
 the "unbridled discretion" given to judges "to determine whether an arrested
 individual is dangerous."  Id. at 214.  In contrast, the federal bail statute
 contains provisions that, consistent with substantive due process, narrow the
 judge's inquiry (for example, the court must find that no release conditions
 "will reasonably assure the . . .  safety of any other person and the
 community," 18 U.S.C. { 3142(f)), and the statute enumerates factors to be
 considered in the bail decision.

 Similarly, the Rhode Island Supreme Court applied Salerno to its own state's
 bail statute, which allows pretrial detention of certain classes of defendants
 defined by statute as dangerous.  The court upheld the statute but also
 formulated procedures necessary to make it conform to federal due process,
 including a requirement that, in deciding whether to deny bail, the trial
 court make findings of fact on the record regarding the individual defendant's
 dangerousness.  Witt, 572 A.2d  at 266.  Next, the court held that any
 restrictions on defendant's liberty must be consistent with the particular
 circumstances of the case.  Id. at 267.  To guarantee this, the trial court
 must consider any alternatives to denying bail that would ensure that the
 defendant would not be a danger to the community.  Id.  Finally, the court
 endorsed Salerno's procedural due process protections, including the
 clear-and-convincing standard for a finding of dangerousness, reasoning that a
 heightened standard promotes a more accurate judicial determination, which is
 necessary to justify restrictions on defendant's liberty prior to trial.  Id.

 I believe Aime and Witt properly apply due process standards mandated by
 Salerno to bail review determinations for defendants who are not guaranteed
 bail as of right.  Like the statute analyzed in Witt, our bail statute, 13
 V.S.A. { 7553, singles out a class of offenders who may be denied bail.  But
 merely being a member of the class is not enough to support preventive
 detention.  Rather, the court must exercise its discretion within the context
 of an individualized inquiry outlined in Witt and find by clear and convincing
 evidence that a particular defendant would be a danger to an individual or the
 community and that no conditions or release would be sufficient to prevent
 that danger.  I would remand for proceedings consistent with that purpose. See
 Duff, 151 Vt. at 442, 563 A.2d  at 264 (where trial court made inadequate
 findings on bail decision, case was remanded so it could show on the record
 how it had exercised its discretion).

 On remand, I would also require that the trial court appropriately apply the
 clear and convincing standard.  Having improperly invented a presumption of
 incarceration, the Court puts the burden of proof on defendant to show that he
 deserves liberty.  For example, the Court states that "it is entirely
 appropriate for the court to deny bail unless it is fully convinced that the
 defendant will abide by the conditions that would be imposed if defendant were
 released," even though it apparently accepts the Salerno requirement that
 there must be clear and convincing evidence that defendant is a risk to flee
 or endanger the public in order to deny bail.  Cf. Foucha, 112 S. Ct.  at 1787
 (striking, on due process grounds, a Louisiana statute requiring persons to
 prove that they are not dangerous in order to be freed from confinement in a
 mental institution).

 The Court states that Salerno has "only limited applicability" because it
 upholds the federal bail statute without making a definitive ruling on what
 parts of it are constitutionally required.  Witt and Aime, however, treat all
 of the Salerno protections as due process requirements.  Also, the Court seeks
 to distinguish all three cases because they deal with bail statutes that are
 explicitly preventive detention measures.  I find this a distinction without a
 difference.  Surely 13 V.S.A. { 7553, at least as Court today interprets the
 bail scheme, provides for preventive detention. Surely that was what the trial
 court sought to achieve in this case.  What is lacking in the Court's
 interpretation of our bail scheme is not the goal of preventive detention, but
 any reasoned limitations on the court's discretion to detain an accused who
 lacks a constitutional or statutory right to bail.

                                   III.

 Finally, and most disturbing from a due process perspective, is the Court's
 approach to reviewing the trial court's bail decision.  Review in this Court
 should, as the Court today asserts, "provide[] the necessary check against
 unbridled discretion."  Because defendant's fundamental right to liberty is at
 stake and because any attempt to deprive him of liberty should be strictly
 scrutinized, the Court's review of the trial court's discretion falls woefully
 short.  Instead of requiring the trial court to make a record that conforms to
 due process, the Court simply hypothesizes the trial court's reasoning and
 allows it the benefit of various presumptions -- for example, a presumption
 that defendant's "'history of pretrial criminality'" leads to the conclusion
 that "'he cannot be trusted to conform to the requirements of the law while on
 release,'" op. at 12 (quoting United States v. Coyne, 800 F. Supp. 1018, 1020
 (D. Mass. 1992)), which the Court then enlarges to a presumption that multiple
 violations of prior conditions lead to a conclusion that "no combination of
 conditions of release would ensure defendant's presence at trial or the safety
 of the alleged victim and witnesses and the public."  Id.  This use of
 unsubstantiated presumptions is inconsistent with the due process requirement
 that decisions involving fundamental rights must be narrowly and individually
 tailored.  Bail inquiries should be based on facts not presumptions or
 speculations:  Was this defendant at risk to flee or endanger others?  Who was
 endangered -- the victim, witnesses, the public? Was there any condition that
 would effectively protect the endangered person(s)?  If not, why not?

 This case illustrates the danger of allowing a looser inquiry. Defendant came
 before the court for a review of a no-bail decision on a charge of aggravated
 sexual assault.  Reading the transcript and the court's opinion, the court
 apparently looked at defendant's prior history in the court file, found
 violations of conditions and charges of violations of conditions, and decided
 that defendant could not comply with conditions and should be incarcerated.
 The issue is not, as the Court states, whether the trial court can in its
 discretion deny bail for "substantial" violations of "important" conditions of
 release.  These characterizations are the Court's.  The trial court never did
 any such analysis.

 The trial court did not substantively evaluate defendant's violations of
 conditions.  If the court found the violations "substantial" or "serious," it
 did not say so.  The prior violations, all apparently involving defendant
 illegally approaching a former girlfriend, were not related to the current
 charge.  Under Sauve, defendant could not have his bail revoked for any of
 these violations or for violating the no-alcohol condition.  ___ Vt. at ___,
 621 A.2d  at 1302.  The court provides no explanation about how the former
 violations relate to the new charge. Finding prior violations in the record
 should be the beginning not the end of the inquiry.

 Salerno requires that pretrial detention be a "carefully limited exception."
 481 U.S.  at 755.  The Court today does not require the trial court to be
 either careful or limited in its decision making; it has reduced a fundamental
 concept to an empty formula.  Under the Court's decision, an accused could be
 denied liberty merely because it is inconvenient for the court system to deal
 with him, as long as some hypothetical governmental interest can be produced
 as a cover.

 Moreover, the problem with the trial court decision here is not that it is
 wrong, but that we cannot tell if it is wrong.  The trial court's rationale is
 accepted because it "is not arbitrary."  Both the trial court's decision
 making and this Court's review of it fall far short of the strict scrutiny
 required under substantive due process analysis.

                                    IV.

 The biggest loser in today's decision is not the bail decision-making
 process.  It is the presumption of innocence.  Based only on an accusation --
 not a conviction -- of aggravated sexual assault, defendant has lost his
 presumption of innocence and faces indefinite incarceration, without a trial,
 without even a finding that he is at risk to flee or endanger others.

 Although the Court stresses that bail as of right is denied only to those
 committing the "most serious of crimes," the legislature can easily enlarge
 that class by attaching the penalty of possible life imprisonment to any
 crime.  The presumption of innocence is too easily eroded by fear of those
 accused of criminal behavior.  We should not allow that erosion to be
 compounded by allowing the process of making bail decisions to a casual one.

 Honoring the presumption of innocence is often difficult; sometimes we must
 pay substantial social costs as a result of our commitment to the values we
 espouse.  But at the end of the day the presumption of innocence protects the
 innocent; the shortcuts we take with those whom we believe to be guilty injure
 only those wrongfully accused and, ultimately, ourselves.

 Salerno, 481 U.S.  at 767 (Marshall, J., dissenting).

 I would reverse and remand for a bail review that comports with the
 requirements of due process.

 I am authorized to state that Justice Morse joins in this dissent.
$