Wednesday, January 31, 2018

December 2017: Gov. BROWN COMMUTED 19 inmates, INCLUDING 9 LWOP

A big Thank you to Life Support Alliance (LSA) P.O. Box 277, Rancho Cordova, CA 95741 for this enlightening article; and who continuously provides up to date information that impact Lifers across California currently under the Executive Branch of Gov. Brown’s office.

The excerpt below is provided as a courtesy from LSA and they can be reached at  lifesupportalliance@gmail.com


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A few days before Christmas 2017, Governor Jerry Brown, taking a page from Santa Claus’ book, delivered some pretty big Christmas presents to many former and current prisoners, handing out a whopping 132 pardons to former inmates, and reducing the sentence of 19 current prisoners.

In a truly life-changing move, nine (9) of the commutations offered LWOP inmates the hope of parole, by changing their sentences to life with the possibility of parole.

These eve of Christmas Eve announcements nearly doubled Brown’s total commutation number for the year, to total of 35 commutations in 2017, 15 of those LWOP inmates.

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Attorney Richard Pfeiffer: A big Congrats to our colleague!


Law Office of Rich Pfeiffer       Website:    http://highenergylaw.com/
14931 Anderson Way
Po Box 721
Silverado, CA, 92676


Interestingly, one of the pardons issued by Brown was to Richard Pfeiffer, released in 1994 after serving a bit less than 2 years for robbery and burglary. Why, in the 132 pardons issued, is this notable?

Because Pfeiffer went on to become not only an attorney, but an attorney who represents lifers at parole hearings and does incredible Oral arguments in the Court of Appeals. Since Pfeiffer’s release  Governor Brown noted he has:
“lived an honest and upright life, exhibited good moral character and conducted himself as a law-abiding citizen.”

The Governor also noted Pfeiffer has also provided pro bono assistance to several criminal justice organizations.
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For those still inside, the news was equally positive. Several of the 9 LWOP inmates touched by the Governor also fell under the umbrella of YOPH and 7 were women prisoners.

The commutations also included one third-striker (3X). Most LWOP sentences were commuted to sentences of 25 to life with the possibility of parole, meaning many will appear before the board within the next handful of years.

In noting his reasons for commuting the sentences of both LWOP and other inmates, the Governor noted all had been exemplary prisoners, most never receiving any RVRs, being heavily involved in, and in some cases actually creating, self-help programs. Many were able to submit letters from prisons staff, including wardens, in their commutation petitions.

 In detailing his reasons for providing potential relief for many of the female inmates, Brown noted they had been victims of intimate partner battery, situations that likely contributed to their actions in committing their crimes. Intimate Partner Battery (aka BWS) has long been recognized as a mitigating factor in criminal actions, though most of the women affected by the Governor’s pardons were sentenced prior to this [battered women syndrome] (BWS)  being recognized by the legal community.

Friday, December 22, 2017

In re Rodriguez:(Superior) The Board’s Illegal Use Of Confidential Information

IN RE JOSEPH RODRIGUEZ:
Superior Court, County of Sacramento
The Board’s Illegal Use Of Confidential Information!

Attorney Marc Eric Norton in conjunction with ECC (GARY ECCHER) had a BIG WIN in the Sacramento Superior Court.  Congratulations in receiving justice for ALL INMATES being denied parole by the illegal use of confidential information ! ECC can be contacted at:

ECCHER CONSULTING COMPANY  (ECC)
PO BOX 50106
IRVINE,  CA  92619
714-381-0694 

 See ECC Newsletter#32  excerpt BELOW--> 


OVERVIEW
 Rodriguez  (a.k.a. JROD) was 52-years old and had spent 27-years in prison while serving a sentence of 17-years to life for second degree murder at the time of the 2016 hearing. The Board denied parole based on (4) confidential information Memos dated:
>September 16, 2013,
>February 28, 2013,
>March 19, 2010,
>February 6, 2008,.

The confidential information was never disclosed prior to the parole hearing The Board acknowledged this was a “difficult decision today” but there still were some issues that link JROD to current dangerousness—institutional behavior, credibility and/or minimization. NOTE:  (1) the Board never found this confidential information was “reliable” as required by statute; (2) the Board did not deny parole based on the offense being “heinous, atrocious or cruel” within the meaning of the regulations. The court agreed with ECC and issued a 57-page Order (dated: 8/18/17)

BACKGROUND: The commitment offense occurred at a deli where JROD and his friends were drinking and playing a capping game that they normally played with each other. Capping means clowning each other about things in life and trying to get someone’s goat. JROD was drunk and shot one of his friends to death during the
game. JROD had a stable social history and his rap sheet had an entry for threatening a school public officer in 1983, and he was convicted of misdemeanor battery. Postconviction history was exemplary, the Board found, “by clear and convincing evidence,” that JROD’s self-help programming, education, vocations, realistic parole plans, support in the community, and age supported parole. The Board also found JROD has not received a disciplinary infraction for 21-years which was “very positive.” He was remorseful. The Board acknowledged that he was “very close” to receiving a parole date, “it was a tough choice.”

The clinician stated that JROD demonstrated fair insight into his substance abuse problem and has an adequate plan to maintain sobriety in the community. The clinician concluded JROD is a low risk for future violence. As reflected above, the Board denied parole based on confidential information, credibility and minimization. But those two latter issues were related to JROD’S answers to the confidential information about his gang history. Within the petition, ECC cited In re Prewitt (1972) 8 Cal.3d 470, In re Olson (1974) 37 Cal.App.3d 783, and Ochoa v. Superior Court (2011) 199 Cal.App.4th 1274 in support of using the confidential information illegally.

ECC used the same arguments they had perfected in In re Salvador Buenrostro but eventually lost—still pending in the California Supreme Court.

Besides the illegal use of confidential information claim, ECC also filed the standard claim that there was no evidence to support the Board’s conclusion that JROD was currently dangerous. After the court issued the order to show cause, Respondent filed a Return, and as usual, they tried to make JROD look as bad as possible. The
court noted that Respondent failed to discuss the Prewitt/Olson/Ochoa case law, which, according to JROD, required the board to have disclosed enough information about the confidential information to allow JROD to defend himself about it at the parole suitability hearing, without disclosing the identities of anyone else in the confidential documents. Respondent also tried to claim that any error about not disclosing the confidential
information was harmless.

DECISION: The court found: Respondent is incorrect, regarding the lack of notice
and opportunity to be heard about the confidential gang information. It simply is not sufficient notice, for purposes of procedural due process, to inform JROD and his counsel at the outset  of the parole hearing itself that the parole board was going to consider four documents containing confidential information at the hearing, while refusing to disclose to JROD or his counsel any part of the content of those documents that could have been disclosed without endangering the safety of the institution or revealing the identities of persons named in the documents. Indeed, the court has now been able to reveal such
information to JROD, as summarized above, as the summaries above have been carefully crafted to not endanger the safety of the institution or reveal anyone else's identity.


The court also found that 15 Cal. Code § 3321 should be interpreted as also applying to parole decisions when based on confidential information. 15 Cal. Code § 2235 should be interpreted as requiring that before such information is used, that the procedures regarding confidential information have been employed, and that would include both notice of the gist of the confidential information, in a redacted manner, as well as determination of reliability under the dictates of the regulations. And, under In re Estrada (1996) 47 Cal.App.4th 1688, sufficient evidence must exist to show that the confidential source is reliable, before the confidential information may be used.

Prewitt/Olson/Ochoa cases indicate that due process requires notice of the gist of the confidential information to JROD before the parole hearing, in a redacted manner so as not to endanger the safety of the institution or reveal the identity of any other person, and to give JROD an opportunity to respond to the confidential information, as revealed to him in a redacted format, at the parole hearing itself. JROD was denied that opportunity. JROD still does not know what is contained in the four confidential documents; the gist of the documents was never revealed in any form to JROD or his counsel. Nor does it appear that any of the confidential documents reveal any specific information that supports the conclusions in them that the confidential information given by the confidential informant in each is reliable. The first lists a reliability reason that is not listed in 15 Cal. Code Reg. § 3321 (b) (c) at all, nor does that reason given, that the interviewed inmate admitted to participating with the gang's prison politics while housed at a different institution, show any reason to believe that the information the inmate gave about JROD was reliable, nor is any corroborating evidence regarding JROD noted in the report.

The second and third documents make only vague conclusions that some other, unspecified evidence corroborated the information contained in them. And, the fourth document makes a conclusory statement that the information has proven to be true, without reference to what occurred with regard to JROD that shows that the information about JROD was in fact true.

These documents do not appear to show any satisfactory assessment of reliability under meaning of 15 Cal. Code Reg. § 3321(b), nor did the parole board, during its in-camera portion of the parole hearing, undertake any assessment of reliability. As such, it does not appear that the confidential documents should have been considered at all. And, it appears clear that the main basis for the parole board's denial of parole to JROD was the confidential information about JROD's purported gang activities throughout his years in prison, that JROD's commitment offense showed JROD's gang mentality, and that put together the continuing gang mentality of JROD and his prison gang activities rendered him an unreasonable risk of danger to the public safety if released from prison.

Had JROD and his counsel been given notice of the confidential information in advance, in a redacted format such as summarized by the court above, JROD and his counsel could have challenged the use of the confidential information due to a lack of sufficient finding of reliability of each of the confidential sources. JROD also could have been able to respond to the accusations made against him by the confidential sources, during the parole hearing. Not having been given the notice and opportunity to challenge the confidential information, JROD was denied procedural due process and is entitled to a new parole hearing.

DISPOSTION:
The Board is HEREBY DIRECTED by this court to VACATE its denial of parole to JROD, and to conduct a new parole hearing within 60-days of the issuance of this order.  Bottom line: The court found the Confidential Information -UNRELIABLE.




ECC & ATTORNEY MARC NORTON - CONGRATS!!!!

Monday, November 20, 2017

Ca. Santa Clara Sup. Court got it right: "Preponderance Of the Evidence" is the correct BPH standard


In the United States legal system, there are several Standards of Proof that must be met before the judge (or decision maker) decides who wins a case. Below are definitions of the standards, in order to better understand a recent (11/14/17) Superior Court Judge Order from Santa Clara. The Judge Granted an inmate's Habeas Corpus Petition, based on the Board of Parole Hearings, using the wrong Standard of Proof during the hearing.


The Preponderance of the Evidence is a standard of evidence, or standard of proof, normally used in civil trials vs. criminal trials.Although not the law, we sometime state the standard of proof, in a numerical value. Here the requirement would be that more then 50% of the evidence points to something. For example: At the end of civil case A v. B, 51% of the evidence favors A. Thus, A has a Preponderance of the Evidence, A has met their burden of proof, and A will win the case. The English expression "More likely than not" is also sometimes used for describing this burden of proof.

If we extrapolate this method to the Parole Suitability Hearings, then it means if Parole is Denied - the unsuitability factors must be found by a Preponderance of the Evidence. In other words, the Board is required to weigh all the relevant evidence and if 51% of the evidence favors unsuitability then the Board can deny a parole grant. They should NOT use the highly differential standard of "some evidence"  used by the Court. If we ventured a numerical value the "some evidence", it may require maybe only 5-10% of the evidence favors unsuitability. (Note : Editor's opinion on this "some evidence" numerical value)

The next most stringent category is “Clear and Convincing Evidence,” which is used in some criminal trials, civil cases, and now in the Board of Parole Hearings (BPH) when applying Marsy's Law length of Denial (3 to 15 years). A medium level of burden of proof which is a more rigorous standard to meet than the preponderance of the evidence standard, but a less rigorous standard to meet than proving evidence beyond a reasonable doubt. 

Finally,  the criminal courts use the highest standard of guilty “Beyond a Reasonable Doubt”. Those legal authorities who venture to assign a numerical value to “beyond a reasonable doubt” place it in the certainty range of 95%.

Given all these Proof of Standard definition (above), Hon. Eric S. Geffon of the Santa Clara California Superior Court  ORDERED (11/14/17) the Petitioner (Inmate ORLANDO CRUZ VASQUEZ) ) be afforded a new Parole Hearing using the proper Burden of Proof standard of  Preponderance of the Evidence.  Attorney NOTE: this case is not citeable since it is only at the Superior court level and obviously not a Published case. To get a copy of the In re Vasquez Order, please email our law office at  Ynavaro@earthlink.net (my legal assistant)  use the SUBJECT line: VASQUEZ ORDER request.


Make sure when you hire a Parole Hearing attorney that they use the Proper Law [when fighting for your Loved one] and also knows which Standards of Proof to apply at the Parole Hearing- it can make the difference between a Grant and a Denial!