Duse is charged with first-degree murder of his work supervisor and use
of a firearm in the commission of that murder. His trial is set for March 19, 2018.
On December 28, 2017, the circuit court heard Duse's motion for pre-trial bail.
Code § 19.2-120 governs pre-trial bail. Under Code § 19.2-120, a person held in
custody pending trial for a criminal offense "shall be admitted to bail by a judicial
officer, unless there is probable cause to believe that ... [h]e will not appear
for trial [or] [h]is liberty will constitute an unreasonable danger to himself or
the public." Code §§ 19.2-120(A)(1) and (2). However, because Duse is charged with
first-degree murder, for which *515the maximum sentence is life imprisonment, see
Code §§ 18.2-10(b) and -32, the circuit court was required to presume, subject to
rebuttal, that no condition or set of conditions will reasonably assure Duse's
appearance or the safety of the public. See Code § 19.2-120(B)(2) ("The 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 [a]n offense for which the maximum
sentence is life imprisonment or death.")., As to the nature and circumstances of
the offenses, the Commonwealth alleged that on July 26, 2017, Duse was seen lying
in wait behind his workplace at a pharmacy in Warrenton, Virginia. Duse had recently
learned that the central claim in his age discrimination suit against the pharmacy
had been dismissed and his attorney had moved to withdraw. Duse's lawsuit had been
going on for one and a half years and several supervisors and corporate officers,
including Rex Olsen, had testified against Duse in depositions. Duse hid behind
a dumpster at the rear of the pharmacy and shot Olsen as Olsen was throwing away
the store's trash. After being shot in the back of the head, Olsen crumpled to
the ground, turning face upward. Duse was seen leaning over Olsen, shooting him
in the face at close range. Duse then took Olsen's cell phone, wallet, and store
keys and walked away calmly, heading back to a vehicle and ultimately to his home
in Fairfax County. He was arrested six days later., Duse presented evidence through
defense counsel's proffers and witness testimony.2 Counsel proffered that Duse
was 76 years old with no prior criminal record and he had appeared at all court
proceedings. Duse has resided in Virginia for 22 years, including 16 years at his
current address. He has been married for over 15 years and his wife was in the courtroom.
He had served in the Army and was honorably discharged. He has an industrial engineering
degree and a Master's degree in business from Harvard. He had been employed consistently
throughout his life. He had limited financial resources, but had been able to retain
counsel through family support. He is a United States citizen and had tendered his
passport to the general district court at the initial bond hearing (although the
passport could not be located at the time of the circuit court hearing). Counsel
further proffered there was no evidence of mental health issues in Duse's past
or present, he had never abused alcohol or drugs, had never been a member of a criminal
street gang, and there was no indication his release would pose a danger to anyone.
Counsel acknowledged that Duse and his wife own a home in the Philippines. During
his pretrial services interview, Duse failed to disclose that he and his wife had
planned to relocate to that home., Lori Dance, Duse's niece and a Nevada college
professor, testified that Duse had been a "father figure" and "constant advisor"
to her. Dance described Duse as the "patriarch of the family" and the person "we
all go to for advice and counsel.", Mark Warren, a Massachusetts college professor,
testified he had known Duse for 25 years as a friend and mentor. Warren had last
seen Duse for a few hours in the spring of 2015. Warren described Duse as a "superrational,"
knowledgeable, kind, calm, and generous person, whom Warren had never seen become
angry., Testifying for Duse as an expert in "the field of psychiatric evaluations
as it deals with paranoia," Dr. William Lawson, a psychiatrist of 25 years, stated
he met with Duse for approximately two hours at the jail and spent two hours reviewing
the Commonwealth's memorandum and exhibits. Dr. Lawson did not administer any psychological
tests to Duse. He gave Duse a "mental status exam" and asked him several questions
designed to "look at the extent to which people believe whether or not events were
overvalued ideas versus frank paranoia." Based on this meeting and document review,
Dr. Lawson opined that Duse did not have a personality disorder related to the litigation
with his former computer electronics employer. Dr. Lawson further opined that "right
now" Duse would not be a "physical threat to the community" if he was released on
conditions. Dr. Lawson did not complete a written report., In ruling on Duse's
motion for bail, the circuit court initially observed it was not "adjudicating the
paranoia or lack thereof of this particular defendant." The court then noted the
Commonwealth's primary evidence was an "aged" 25-year old report (presumably Dr.
Zonana's report) prepared in connection with "another case" and was not subject
to cross-examination. The court said it would give "some weight" to this hearsay
report, but not the same as it would accord to the testimony of Dr. Lawson, who
was present to be cross-examined.3 The court then found Dr. Lawson's testimony
"rather superficial ... in terms of his analysis" and lacking "detail in terms of
[his] examination." Based on those observations, the court concluded that Dr. Zonana
and Dr. Lawson "counteract and balance each other off." Continuing, the court stated:,
Turning to Code § 19.2-120, the court noted the statute directed it to presume,
subject to rebuttal, that no conditions would assure Duse's appearance or the safety
of the public. As to the appearance element of the analysis, the court found it
was likely that Duse would appear for court proceedings, as he had no history of
failing to appear and his age made it unlikely he would "take off and head off across
the country and try to escape into Canada." As to the public safety factor, the
court noted it had "serious concern about the nature of the circumstances alleged,"
but that it was not aware of "any specific threat to any other individuals." The
court further stated: "There's no history of violence here with Mr. Duse. We don't
know of any particular person or persons other than perhaps unnamed employees at
[the pharmacy], which I'm not aware of at this point, who could be threatened by
[him]. So right now at least I don't have an indication that he presents an immediate
threat to other individuals.", Based on these findings, the court noted that a GPS
device could be used to make Duse's location known at all times, then granted his
motion for bail and set his bond at $75,000 cash or corporate surety, with the additional
conditions that he (1) avoid all contact with employees of the pharmacy, (2) refrain
from possession of firearms, (3) be monitored by a GPS device through the bond company,
(4) not travel outside Fairfax County and the City of Alexandria, except for medical
treatment at the VA Hospital in Washington, D.C., (5) travel to Fauquier County
only for court appearances, and (6) surrender his passport to the circuit court.,
This Court reviews a trial court's decision whether to grant bail for abuse of
discretion. See Fisher v. Commonwealth , 236 Va. 403, 411, 374 S.E.2d 46, 51 (1988).
The trial court must exercise "not an arbitrary discretion, but a sound judicial
discretion." Judd v. Commonwealth , 146 Va. 276, 277, 135 S.E. 713, 714 (1926).
"[T]he abuse of discretion standard requires a reviewing court to show enough deference
to a primary decisionmaker's judgment that the court does not reverse merely because
the reviewing court would have come to a difference result in the first instance."
Lawlor v. Commonwealth , 285 Va. 187, 212, 738 S.E.2d 847, 861 (2013) (internal
quotation marks and citation omitted)., The Commonwealth contends the circuit court
abused its discretion for four reasons. First, the Commonwealth argues the circuit
court abused its discretion by applying the doctrine of presumed innocence to a
pre-trial bail hearing. We agree., "The presumption of innocence is a doctrine that
allocates the burden of proof in criminal trials ... [b]ut it has no application
to a determination of the rights of a pretrial detainee during confinement before
his trial has even begun." Bell v. Wolfish , 441 U.S. 520, 533, 99 S.Ct. 1861, 1870,
60 L.Ed.2d 447 (1979) ; see also Dorsey v. Commonwealth , 32 Va. App. 154, 164 n.1,
526 S.E.2d 787, 792 n.1 (2000). By virtue of being indicted for first-degree murder,
Duse is "presumed" to be "an unreasonable danger to himself or the public" and a
flight risk. See Code § 19.2-120(B)(2). Therefore, by applying the presumption of
innocence, the circuit court utilized an erroneous legal standard to guide its consideration
of the Code § 19.2-120 factors, and its decision regarding bail, premised on that
consideration, was an abuse of discretion., See Code §§ 19.2-120(E)(1) and (3).
The court inexplicably stated that Duse had no history of violence, ignoring that
he currently was under indictment for the execution-style murder of his work supervisor.
Additionally, the court never discussed Duse's long history of mental health disorders,
his history of protracted litigation against former employers, or the evidence that
former co-workers, supervisors, and a customer had reported fearing him. Moreover,
the existence or nonexistence of "specific" or "immediate" threats to others is
not a factor required to be considered under Code § 19.2-120(E), and these considerations
certainly would not alone be sufficient to rebut the presumption that no conditions
would reasonably assure the safety of the public.