Tuesday, November 3, 2015

In re Swanigan 9/1/2015: BPH erred by Denying Parole on a non-admission of crime

Case Name: In re Swanigan , District: 2 DCA , Division: 1 , Case #: B261904
Opinion Date: 9/1/2015 , DAR #: 10193

Great appellate Attorney Rich Pfeiffer pulled this one out for the Lifers!
Rich was under appointment by the Court of Appeal, for Petitioner.

In 1981, a jury convicted Swanigan, then 20 years old, of first degree murder. The jury found that he personally shot Ronald Como on September 10, 1980. The trial court sentenced him to 27 years to life in prison. Except for an admission made at his eleventh (11th) Parole Hearing in 2014 and quickly withdrawn, Swanigan has continuously and consistently maintained that he did not shoot Como.

Board of Parole Hearings (BPH) erred by denying parole to otherwise suitable defendant because he would not admit guilt. In 1981 defendant was convicted of first degree murder after he was identified as the person who shot the owner of a car repair shop. During 10 parole hearings defendant maintained his innocence. At the eleventh, he briefly admitted the killing but shortly thereafter recanted following a recess during which his attorney told him to tell the truth. Defendant's in-prison conduct was discipline free for a lengthy period and his prior misconduct did not involve violence. His psychological report reflected a low risk of violence and he had parole plans.

The BPH denied parole because defendant lacked insight into his offense and lied briefly to them during the hearing. After the superior court denied his writ petition, Swanigan petitioned in the Court of Appeal. Held: Habeas petition granted. When assessing whether a life prisoner poses an unreasonable risk of danger if paroled, BPH must consider all relevant, reliable information, including the failure to gain insight into the life crime.

However, BPH may not require an admission of guilt to set a parole date (Pen. Code, § 5011; Cal. Code Regs., tit. 15, § 2236). Here, the information in defendant's post conviction record supports a finding that he is rehabilitated and no longer poses a danger to society. The BPH did not articulate a rational nexus between the facts of the commitment offense and current dangerousness, relying instead on defendant's refusal to admit guilt to conclude he lack sufficient insight or remorse. This was error. Even applying a highly deferential standard, i.e., whether "some evidence" supports BPH's denial of parole, there is no evidence in the record that defendant poses a risk of danger if released.

The petition for a writ of habeas corpus is granted and the decision of the Board of Parole Hearings is vacated. The Board is directed to conduct a new parole suitability hearing consistent with due process of law and with this decision. (In re Prather (2010) 50 Cal.4th 238, 244.)

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