Tuesday, October 6, 2009

In re Phillips - Remedy when Court Orders new hearing?

The In Re Phillips is a crucial case in that it addresses multiple BPH issue for the inmates.
Specifically one of the issue it deals with - WHAT remedy an inmate will receive from the Court once he has received an OSC?

In doing HC - Prayer normally follow a 3-prong approach similar to this:
1) Grant a new Hearing with the correct legal standard ( Lawrence/Shaputis)
2) Grant a new Hearing to set a Parole Date UNLESS new evidence show unstuitability
3) Grant a Hearing to set a Parole Date and release forthwith.

Different Courts have used different remedies. Hopefully this case will shed some light and consistency. Below are the minutes of the CA Supreme Court for this case.
August Supreme Court Minutes:

S173519 B215004 Second Appellate District, Div. 4 PHILLIPS (AHMAD) ON H.C.
Petition for review granted; transferred to Court of Appeal, Second Appellate District, Division Four, with directions to issue an order to show cause.

The petition for review is granted.

The matter is transferred to the Court of Appeal, Second Appellate District, Division Four. That court is ordered to vacate its summary denial dated May 21, 2009, and is further ordered to issue an order to show cause, returnable before the Los Angeles County Superior Court. The Director of Corrections and Rehabilitation is to be ordered to show cause, when the matter is placed on calendar, why the Governor did not abuse his discretion in reversing the Board of Parole Hearings’ July 2008 determination that petitioner was suitable for parole, including his determination that petitioner lacked insight with respect to the commitment offense, and why the Board’s decision to grant parole should not be reinstated. (See In re Lawrence (2008) 44 Cal.4th 1181; In re Shaputis (2008) 44 Cal.4th 1241, 1259-1260; In re Palermo (2009) 171 Cal.App.4th 1096.) The return is to be filed on or before September 11, 2009.