Nicholas A. PALMIGIANO, Appellant, v. Joseph BAXTER et al., Appellees.
No. 73-1088.
United States Court of Appeals, First Circuit.
Argued Sept. 5, 1973. Decided Nov. 16, 1973.
487 F.2d 1280
Colkley‘s testimony, intended to bolster the testimony of Floyd as to appellant‘s noninvolvement, was found similarly incredible and contrived. For example, in earlier statements to the F.B.I. Colkley had implicated appellant in a number of other bank robberies but at the hearing he too recanted his prior statements, excluding appellant from each of those episodes. Colkley‘s cross-examination produced a stream of contradictions. Our review of the record and of the findings of the lower court discloses ample support for the court‘s conclusion that the revised stories of Floyd and Colkley were unbelievable and that Floyd‘s testimony at the trial was truthful as to appellant‘s involvement in the robbery.
Appellant‘s counsel, at appellant‘s insistence, presents the following claim on appeal. Appellant argues that certain bullets which were alleged to have been given by him to a Miss Burriss and thence to an F.B.I. agent were improperly used against him at the trial as circumstantial evidence of his participation. He points to Colkley‘s testimony at the hearing as showing that it was Colkley who gave the bullets to Burriss; he further claims that the F.B.I. agent‘s testimony was untruthful as to the time and place of the agent‘s receipt of the bullets from Burriss. This issue has no merit. The district judge found Colkley to be generally unworthy of belief. Burriss testified at the trial that the appellant had given her the bullets to keep the police from finding them. Any attack on the F.B.I. agent‘s testimony at the trial goes to a question of credibility not properly cognizable on a motion for new trial. Robinson v. United States, 345 F.2d 1007 (10 Cir.), cert. denied, 382 U.S. 839, 86 S.Ct. 87, 15 L.Ed.2d 81 (1965); Meyers v. United States, 207 F.2d 413 (4 Cir. 1953).
We have considered other assignments of error and find them to be frivolous, not meriting discussion. We conclude that the district court was correct in both its assessment of the evidence and application of the law. The Government‘s motion for summary affirmance is granted.
Affirmed.
Kilkenny, Circuit Judge, dissented and filed opinion.
Cary J. Coen, Providence, R. I., John M. Roney, Washington, D. C., Max D. Stern, Stern & Shapiro, Boston, Mass., and Stanley A. Bass, New York City, on brief for Robert Flint and Michael Roberts, amici curiae.
W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellees.
Before COFFIN, Chief Judge, KILKENNY* and McENTEE, Circuit Judges.
COFFIN, Chief Judge.
This is an action seeking damages and declaratory and injunctive relief pursuant to
Appellant was charged with “inciting a disturbance and disrupt [sic] of A.C.I. operations, which might have resulted in a riot“, and summoned before a prison disciplinary board. He was informed
After reviewing the record, the district court concluded that appellant had not been denied due process and therefore was not entitled to any of the relief he sought.4 Although the claim of use immunity arguably did not arise in the original complaint, appellant twice moved for reconsideration of the question of whether he was deprived of his Fifth and Fourteenth Amendment rights against self-incrimination in the prison disciplinary hearing, where he had not been assured that his testimony could not be used to incriminate him in a subsequent criminal prosecution, and had been penalized for his failure to testify in the prison hearing. The district court denied both motions, concluding that the authorities on which appellant relied in support of his motion were distinguishable on their facts from the present case.
This case is one of a lengthening list, raising the questions whether and to what extent due process exists behind prison walls. During the past decade, judicial reluctance to look behind the
The task is a delicate one for courts because of the sensitive and precarious nature of correctional institutions. Prison officials, facing complicated and combustible situations each day, must be free to make a wide range of decisions. Much must be left to their good faith discretion. Sawyer v. Sigler, 445 F.2d 818 (8th Cir. 1971); Marnin v. Pinto, 463 F.2d 583 (3d Cir. 1972). Time has proved, however, that blind deference to correctional officials does no real service to them. Judicial concern with procedural regularity has a direct bearing upon the maintenance of institutional order; the orderly care with which decisions are made by the prison authority is intimately related to the level of respect with which prisoners regard that authority. There is nothing more corrosive to the fabric of a public institution such as a prison than a feeling among those whom it contains that they are being treated unfairly.8
Control over official discretion within prison walls is vital for other reasons as well. Most decisionmaking of correctional personnel is less visible to the public than is the decisionmaking of other public officials, and therefore less likely to benefit from the inherent constraints of public discussion and scrutiny.
In determining to what extent due process safeguards are required in prison disciplinary decisions, federal courts have employed two levels of analysis, first examining whether the questioned decision is one which requires due process at all, and then deciding upon the amount of due process which seems necessary under the precise circumstances. The first determination depends upon an assessment of the inmate‘s stake in the decision, rather than upon a weighing of the inmate‘s interest against the interests of the state. See Morrissey v. Brewer, 408 U.S. 471, 483 (1972); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Board of Regents v. Roth, 408 U.S. 564, 570-571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The stake will be sufficiently large to necessitate some due process if the consequences of the challenged actions of the state officials are sufficiently serious to amount to a “grievous loss“. See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring); Morrissey v. Brewer, supra, 408 U.S. at 481.
In a prison setting where liberty is by necessity shrunken to a small set of minor amenities, such as work or schooling privileges, visitations, and some modicum of privacy, it is likely that any marked change of status which forecloses such liberties will be perceived and felt as a grievous loss. United States ex rel. Miller v. Twomey, supra, 479 F.2d at 717. This implies that a minimal level of due process must be achieved in reaching any decision concerning a particular inmate which may result in a marked change in the status of the inmate‘s confinement, with the result that he may be deprived of amenities on which he has come to rely. The stakes are simply too high for the inmate, and the possibility for honest error or irritable misjudgment too great to allow such decisions to be taken without giving the inmate a chance to be fully informed of the case against him so that he may contest its basis. “In most cases it would probably be difficult to find an inquiry minimally fair and rational unless the prisoner were confronted with the accusation, informed of the evidence against him and afforded a reasonable opportunity to explain his actions.” Sostre v. McGinnis, supra, 442 F.2d at 198. This is as true for a decision based on the security requirements of the institution or the re
Once it has been determined that the inmate‘s stake in the decision is sufficient to require a minimal level of due process safeguards, the second task facing the court, more difficult and more subtle, is to decide how much due process is required beyond this minimal level. “[C]onsideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action.” Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). After the precise interests of the inmate and the state have been identified, the two interests are weighed one against the other. See Goldberg v. Kelly, supra, 397 U.S. at 261, 90 S.Ct. 1011; Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960).
Here, there is no question that some due process was required before appellant could be sentenced to punitive segregation and recommended for a downgraded classification.12 The real question concerns the extent to which due process was required. Pursuant to the so-called Morris rules,13 appellant was given (a) timely notice of the charge against him, (b) an opportunity to ap
The task of striking a proper balance between appellant‘s interest in due proc
The primary responsibility for articulating standards of due process lies with those who have the most intimate knowledge of both the interests of prisoners and the administrative burdens entailed with providing due process within prison. To the extent that legislators, prison officials, and prisoners themselves have spoken on the subject, they provide an essential source of guidance. We are fortunate in this case to have a set of rules for due process within prison that was carefully shaped by prisoners and correctional administrators working together under the aegis of the district court. The Morris rules have provided a workable and useful standard for measuring the extent to which due process safeguards are required in correctional decisions which may result in punitive segregation, loss of good time, and changes in classification. Moreover, the standard is substantially the same as that employed elsewhere within this circuit, see Collins v. Hancock, supra; Meola v. Fitzpatrick, supra, and conforms in large part to the standard set out in model legislation.17
We are fully sensitive to the fact that public administrators may view court decisions affecting “lesser” rights as intrusions into their own realm, and as setting the outer limits of constitutional accommodation. Two observations can help place this area of adjudication in perspective. The first is that the “realm” is that of the Constitution, and that the Constitution is, in the first instance, addressed to government and its officials; this is the premise, not the consequence, of judicial review. The second is that a court decision can most constructively be taken as not only prescribing, as a minimum, a specific rule arising out of a particular case, but as a helpful guide in suggesting the direction in which administrators may soundly proceed with their more detailed implementation.
The government would have us merely examine whether or not the current limitations upon due process are rationally related to the legitimate state goal of efficient custody; if such a rational relationship were found to exist, then the procedural safeguard would be unwarranted.18 We cannot accept, even by implication, this formulation of the rule in the type of situation presented by this case. While due process safeguards have not as yet been elevated to the status of fundamental rights, such as freedom of speech, in relation to which the state‘s interests in administrative efficiency must take second place, they are not to be abridged unnecessarily. That is, we think that if the state can accomplish its purpose just as well by observing some measure of due process as by not observing it, it should tread the former path. Where a due process safeguard entails little or no administrative burden, it should be employed whenever due process is merited. If the burden on the state is minimal, there seems to be no reason why the decision should not be made with the greatest possible care.
Perhaps because there may be few situations where it can be said that little or no administrative burden attends the provision of some due process safeguards, courts have not had occasion to speak in these precise terms. But we think this threshold test, limited though it may be in application, is but an extrapolation of the Court‘s pronouncements in larger matters. The government‘s obligation here is fundamentally the same as that underlying its obligation
With this principle in mind, we turn to an examination of each of the due process claims of the appellant.
Appellant‘s contention that he should have been afforded the additional protection, beyond the Morris rules, of the right to remain silent without his silence being used against him in the disciplinary hearing is based upon an understandable fear that any statements made at the hearing might have been used against him at a later criminal trial concerning the same offense. Without a right to remain silent in the disciplinary hearing, he faced the constitutionally obnoxious dilemma of either remaining silent and risking greater punishment from the disciplinary board or speaking out in his own defense and risking self-incrimination in a subsequent criminal prosecution. See Garrity v. New Jersey, 385 U.S. 493, 496, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Thus, to penalize silence in the disciplinary hearing is, in effect, to penalize the Fifth Amendment privilege against self-incrimination. See Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967); United States v. Jackson, 390 U.S. 570, 581-582, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653 (1968); Carter v. McGinnis, 351 F.Supp. 787 (W.D.N.Y. 1972).21 Although un
The right to remain silent in the disciplinary hearing without his silence being used against the inmate would, however, impose a significant burden upon the processes of fact finding within the disciplinary hearing. The hearings are designed to enable inmates to challenge and dispute allegations about their behavior, and to explain “their side of the story“.22 The practical effect of a right to remain silent would be to eliminate such an opportunity, and force the inmate and the disciplinary board to rely exclusively upon the statements of witnesses. Not only would such reliance be time consuming, but it might also prompt inmates “to pit their own resources against correctional staff in ways that challenge institutional solidarity and encourage confrontations in other areas“.23 Moreover, an exercise of the right to remain silent does not impose a significant burden upon the defendant in a normal criminal trial, because of such procedural safeguards as a strong presumption of innocence, a high burden of proof which the prosecution must overcome, and the full right to call witnesses and cross-examine adverse witnesses. Such safeguards, however, do not exist within the prison disciplinary hearing; if they did, the administrative burdens thereby entailed would be significant. Thus, an inmate‘s silence is likely to work against him in the disciplinary hearing, because in maintaining his silence he sacrifices his most important defense.
We need not enter into a balancing equation concerning the right to remain silent, however, because another route is open which would protect the inmate from self-incrimination in a subsequent criminal prosecution, while imposing no burden upon the prison disciplinary hearing. Where the possibility exists of the inmate being penalized for the same criminal conduct in a disciplinary hearing and a criminal trial, he should be entitled to “use” immunity for statements he might make within the prison disciplinary hearing. See Sands v. Wainwright, supra, 357 F.Supp. at 1093; Carter v. McGinnis, supra, 351 F.Supp. at 793; cf. Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653, 655
Appellant‘s second contention is that the disciplinary board should have required adverse witnesses to appear in person before it, rather than rely solely upon the written reports of prison personnel. Although the Morris rules specifically provide an accused inmate with “the right to call a reasonable number of witnesses, both adverse and favorable, and examine said witnesses“,24 appellant did not exercise his right to confront and cross-examine the complaining officer who witnessed the alleged infraction. Appellant claims, instead, that the burden of summoning adverse witnesses should be upon the disciplinary board, rather than upon the accused inmate. If the board declines to take the initiative and chooses to rely exclusively upon written reports, appellant argues that the board would thereby lack sufficient evidence to convict.
We disagree. We can envisage situations in which the board might justifiably conclude that written reports were sufficiently clear and complete so that further incriminating evidence was unnecessary. So long as the accused inmate might bolster his defense by having the opportunity to call adverse witnesses and cross-examine them, no purpose would be served by creating a per se rule that the board itself must rely only upon witnesses who appear before it. We would caution, however, that in instances where the identity of an adverse witness is withheld from an accused inmate, out of a legitimate fear that otherwise the witness would be subject to retributive violence,25 the board has a strong obligation to summon the adverse witness before it, in camera, and probe the credibility of the witness. See Birzon v. King, 469 F.2d 1241 (2d Cir. 1972).
Appellant‘s final contention is that due process requires that he be allowed to retain legal counsel within the disciplinary hearing. The Morris rules provide for the assistance of a classification counselor or other individual specifically approved by the prison administration if the accused inmate requests help in the presentation of his case before the board.26 Here, the appellant was offered the assistance of a counsel-substitute during the hearing, and was permitted to consult with his retained legal counsel immediately before the hearing, but his retained counsel was barred from the hearing.
Appellant relies upon Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in which the Supreme Court indicated that, under some circumstances, counsel might be required within probation revocation hearings. We think, however, that appellant‘s reliance is misplaced. In Gagnon, the Court did no more than leave the decision whether to supply counsel up to the discretion of the state, saying that the “participation of counsel will probably be both undesirable and constitutionally unnecessary” in most cases, and that the state should consider, among other things, the complexity of the evidence and “whether the probationer appears to be capable of speaking effectively for himself.” Gagnon v. Scarpelli, supra, 411 U.S. at 790, 93 S.Ct. at 1764. Here,
While we are well aware that “[t]he right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel“, Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), we do not feel that prison disciplinary hearings necessarily require professionally trained counsel. The requirement of professionally trained counsel in all cases could amount to a significant expense for the government, both in supplying counsel for the accused and, because the hearing is likely to become more adversarial as a result, in prolonging the proceeding and making it necessary for the state to be represented by its own attorney. The state is not now represented by a prosecutor within the hearings, nor are formal rules of evidence in force to the extent that a defendant‘s procedural rights may be lost if not timely raised. Nor is there a jury for whom a defendant‘s presentation must be made understandable. See Gagnon v. Scarpelli, supra, 411 U.S. at 789, 93 S.Ct. 1756. Moreover, the evidence as to whether the inmate has violated a prison regulation is likely to be simpler, more precise and more readily at hand than in most criminal trials. Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971). While the requirement of legal counsel might be more compelling where the accused, faced with a possible criminal prosecution in the future, had to walk a tightrope between defending himself now and incriminating himself later on, the provision of use immunity eliminates this potentially complicated endeavor. We have no reason to believe that counsel-substitute, of the sort provided for in the Morris rules, will not normally provide adequate assistance to an accused inmate within the disciplinary hearing.
Appellant emphasizes that any mistakes of fact which may have slipped through the hearing are likely to find their way to the State Parole Board when appellant is eligible for parole, and that the presence of counsel at the hearing would have prevented this. Several courts have recognized the damaging nature of a mistake of fact in an inmate‘s prison record which may follow him through the prison system, unfairly punishing him anew each time his record is used against him. Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); McDonald v. Wolff, 483 F.2d 1059 (8th Cir. 1973); Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854, 856 (1970). But we think that a counsel-substitute can be sufficiently effective within most hearings to protect against any serious mistakes of fact on which the disciplinary board might base it findings. Moreover, because a variety of reports and unsupported allegations of fact by correctional personnel may find their way, at various times, into the inmate‘s prison record, a far better way of protecting the inmate from such mistakes would be to let him review and challenge his record whenever correctional decisions are based, wholly or in part, upon the prison record.
While we therefore conclude that there is, under normal circumstances, no duty upon the state to furnish counsel in prison disciplinary hearings, we are also of the opinion that an inmate should be permitted to bring retained counsel with him into the disciplinary hearing.27 We adhere to the approach of the Supreme Court in Goldberg v. Kelly, supra, 397 U.S. at 270, 271, 90 S.Ct. 1011
Retained counsel might benefit the accused in several ways. Counsel could speak on behalf of the accused at the hearing, particularly in those cases where the accused inmate was inarticulate or had difficulty understanding the questions put to him. In addition, counsel‘s presence at the disciplinary hearing and later recollection of what occurred therein might help assure that the immunity accorded the inmate is not violated in subsequent proceedings. The occasional presence of counsel might also have the helpful cautionary effect of assuring that all necessary due process safeguards were provided for within the hearing.
The presence of retained counsel at the disciplinary hearing could also benefit the correctional administration of the prison. Counsel might provide correctional administrators with useful guidance in novel situations where no procedural rules had as yet been developed. And because the precise rudiments of prison disciplinary hearings exist in a developing area of the law where no firm guidelines exist, trained legal counsel may be of important assistance in reaching accommodations between inmates and administrators which would avoid the necessity of continued litigation.
Finally, since inmates are currently permitted to consult with their retained counsel at the A.C.I. outside the disciplinary hearing, we can see no rational purpose served by not allowing them access to their counsel within the hearing. On the contrary, intermittent consultations with retained counsel outside the hearing room while the hearing is in progress would seem to result in unnecessary prolongation of the proceedings. Moreover, the government has offered no reason why retained counsel should not be permitted within the disciplinary hearings.
We therefore conclude that appellant was denied due process in the disciplinary hearing only insofar as he was not provided with use immunity for statements he might have made within the disciplinary hearing, and because he was denied access to retained counsel within the hearing. Since, however, this solution is novel, the appellee cannot in
The judgment is reversed.
KILKENNY, Circuit Judge (dissenting).
I respectfully dissent. In my opinion, the prison officials were under no constitutional, or other, duty to inform the appellant of the existence and possible benefits of the doctrine of “use immunity” in connection with statements that he might make in the prison disciplinary hearing. Indeed, if such a duty existed, appellant is in no position to assert it. He had the advice of retained counsel, who, we must assume, was familiar with the doctrine and, evidently, in weighing the consequences decided not to suggest its use.
Moreover, I am acquainted with no legal doctrine which would require the presence of appellant‘s counsel at the time of the hearing. If, as in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), a defendant charged with the crime of bank robbery is not entitled to the presence of counsel during a pre-indictment display of photographs arranged for the specific purpose of identification, I fail to understand how we, in this type of hearing in the exercise of alleged supervisory powers, can direct states to permit the presence of retained counsel. For that matter, I am unable to discover a legal principle which would require the presence of retained counsel at a hearing, and then deny to a prisoner the presence of court appointed counsel at the same type of hearing. If fundamental fairness requires the presence of counsel at one, it necessarily requires such presence at the other.
Inasmuch as I believe that the so-called Morris Rules adequately protect a prisoner‘s limited fundamental rights, and that appellant‘s other claims do not present issues of constitutional dimensions, I would affirm.
COFFIN
Chief Judge