In re Prather 7/29/10 Court defines BOARD's discretion in Court Ordered BPH Hearings

COURT ORDERED HEARING WILL BE MORE SCRUTINIZED specifically as to what remedies will be allowed by the Court and what "evidence" the BOARD will be allowed to review. Time will tell on how this decision actually plays out in reality. Most likely it will not have a major impact on the ultimate success of litigation.

In re Prather, 50 Cal. 4th 238
Cal Supreme Court case# S173269 and S172903

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When a court directs the Parole Board to conduct a new parole-suitability hearing, the court should not improperly limit the type of evidence the board is statutorily obliged to consider. The Supreme Court granted review to settle a split among the appellate courts as to what action a reviewing court could order the Parole Board to take when it grants a new parole-suitability hearing. The court held is improper for the reviewing court to order the board to consider only a limited category of evidence in making its finding. Specifically, the reviewing court should not order the board to consider only new and different evidence that has emerged since the suitability hearing under review. To do so violates the separation of powers doctrine. The board is the administrative agency within the executive branch that is authorized to grant parole, with veto power vesting in the Governor. While judicial review of parole-suitability is proper so that the petitioner has due process, an order limiting the board's discretion as to what factors it can consider on remand "impermissibly impairs the board's exercise of its inherent discretion to decide parole matters."
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The Court reasoned that the Board in performing its statutory duty to evaluate current dangerousness, should be allowed to consider the entire record as it applies at the time of remand. But the Court decreed limitations. If the remanding court makes express findings of fact (e.g., not "some evidence" of danger in psych reports; or not "some evidence" of danger in parole plans), on remand, the Board cannot reconsider these factor However, if "new evidence" has materialized since the prior hearing, the Panel may consider not only that evidence, but also how it interrelates with prior evidence, in reaching its current dangerousness assessment.

Justice Moreno in a concurring and clarifying opinion wrote:
"an order expediting a remedy is not improper, particularly if a previous remand was ordered by the court. If a court is faced with slapping the Board's hands on a subsequent challenge to remanded hearing, then a more drastic intervention, such as an outright order that the Board grant Parole, may be warranted."

Office of the Inspector General finds numerous problems with the BOARD's "hired guns" (Psychologists)

The Senate Rules Committee asked the Office of the Inspector General (OIG) to investigate at least two aspects of the Board’s psych reports: (1) the factual errors in the reports and (2) psychologists who give lifers higher risk predictions than they received in older reports. The OIG found numerous problems with the reports and noted that these problems put the state at risk of legal challenges and they destroy confidence in the parole consideration process. Here are some highlights:


I - Errors in the Forensic Psychological Reports

· Even though psych reports include the statement that the psychologist reviewed the prisoner’s central file, this is not true. They only review a few documents pulled from the central file by records staff.

· The Board does not actually know how many factual errors are contained in psychological reports, but 100% of the reports in a sample from 2009 contained factual errors. Each report had between one and four factual errors. However, the true number of errors is unknown because the commissioners’ reports of these errors are inaccurate and misleading.

· Senior Psychologists, who are supposed to review and approve the reports written by staff psychologists, never check the sources of statements made in the reports, so even obvious errors and misstatements are overlooked when the reports are approved.

II -The Board Does Not Track Bad Psychologists

· The Board does not have a good way to keep track of how many low-risk, moderate-risk, and high-risk predictions psychologists put in their reports, so they are unable to identify patterns and problems. For this reason, the main question the OIG was interested in – whether the new psychologists exaggerate risk – could not be answered.

· The senior psychologists work out of their homes (not in a central office), and the Board does not keep track of what they do with their time, how many evaluations they actually review or the quality of their work.

III - Commissioners and Prisoners/Attorneys Disagree about Reliability of Reports

· Commissioners thought the psych reports were reliable and that very few of them have errors. Lifers’ attorneys, however, believed a much higher percentage of reports had errors, and they generally found the evaluations to be less reliable than commissioners thought they were.

IV - Commissioners, Deputy Commissioners and Senior Psychologists Lack Training

· Penal Code section 5076.6 requires commissioners and deputy commissioners to receive 40 hours of mandatory training within 60 days of their appointment and 40 hours every year after that. Although commissioners did receive the initial training, none of the 10 commissioners on the job long enough received the mandatory 40 hours each year after that. They all received less than half of the mandatory training, and some received as little as 25% of it.

· Only 3 out of the 16 deputy commissioners that were recently hired received the 40 hours of training at the beginning, and only 2 of the 70 total number of deputy commissioners received the mandatory 40 hours after that. On average, they received less than half of the mandatory training each year.

· Government Code section 19995.4 requires senior psychologists to receive at least 80 hours mandatory training within 12 months of their appointment; however, none of the senior psychologists received this training. In fact, one senior psychologist had not received any training as a supervisor until he had been on the job for more than two years.

V- LIFER Hearing Postponements Likely to Increase Again

· For hearings scheduled in or after October 2010, the Board may not have enough psychologists to complete all the necessary reports because 14 staff psychologists they hired for a limited time lost their jobs at the end of June 2010.

VI - OIG Will Review the Quality of Psychological Evaluations

· The OIG is hiring an independent psychologist to study the accuracy and validity of the Board’s psychological evaluations. The OIG will report on that study when it is complete.

The OIG website is at http://oig.ca.gov/

The full report is available at
http://www.oig.ca.gov/media/reports/BOA/reports/Special%20Report%20on%20the%20Board%20of%20Parole%20Hearings%20Psychological%20Evaluations%20and%20Mandatory%20Training%20Requirements.pdf

Information contributed by: Attorney Keith Wattley

5/24/10 Pearson v. Muntz (9th Cir): State's claims were based on a misreading of Hayward v. Marshall (2010)

Case Holding:

A state-created right, such as California's requirement that parole be granted unless there some evidence of future dangerousness, may give rise to a protected liberty interest that can be enforced as a matter of federal law and via a federal habeas petition. The district court granted the California prisoner's habeas petition because the Governor's decision reversing a grant of parole was not supported by some evidence. The State filed a stay alleging the district court applied the wrong law, and the Ninth Circuit granted the stay until it decided Hayward v. Marshall (2010) __ F.3d __ (06-55392).

In Hayward, the court held that federal habeas claims by California prisoners based on parole denials must decide whether the "some evidence" requirement used by California courts was unreasonably applied. After the Hayward opinion, the Ninth Circuit lifted the stay. The State filed a motion for reconsideration. But because all of the State's claims were based on a misreading of Hayward, the motion for reconsideration was denied.