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:
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!!!!