In the Matter of Jevon Henry, Appellant,v.Brian Fischer,, Respondent.

Brief

N.Y.Nov 14, 2016

1 Prisoners’ Legal Services of New York 41 State Street, Suite M112 Karen Murtagh Albany, New York 12207 Rosa Cohen-Cruz Executive Director Tel.: (518) 438-8046 Sophia Heller FAX: (518) 438-6643 Matthew McGowan James Bogin Staff Attorneys Managing Attorney February 24, 2015 Honorable Andrew W. Klein, Clerk New York State Court of Appeals 20 Eagle Street Albany, New York 122207 RE: Matter of Henry v. Fischer APL-2014-00269 Dear Mr. Klein: Please accept this letter-brief as an amicus curiae submission in support of appellant Jevon Henry in the above-referenced appeal, currently pending before the Court of Appeals, pursuant to the alternative procedure of Rule 500.11. Background At a prison disciplinary hearing held in April and May 2012 Mr. Henry was found guilty of violating certain disciplinary rules, and received a penalty including two years cell confinement in a Special Housing Unit (SHU) and two years recommended loss of good time. After exhausting his administrative remedies, Mr. Henry sought to challenge the hearing disposition through an Article 78 proceeding in state court, on the grounds that 1) he was improperly denied access to the Unusual Incident Report for the incident for which he was charged, because he was not named in the report; 2) he was improperly denied the testimony of two inmate witnesses by virtue of the hearing officer’s failure to inquire into the reasons for the witnesses’ refusals to testify; and 3) the hearing officer improperly denied his request to present Correction Officer Faulkner as a witness. Neither Supreme Court nor the Appellate Division addressed the merits of appellant’s claims. Instead, each of the lower courts dismissed the petition on the ground that the issues appellant sought to raise were not preserved for judicial review. This 2 Court granted leave to appeal to consider the issues of waiver and preservation on which the lower courts ruled. New York’s prison system has three tiers or levels of disciplinary hearings, with Tier III, also known as Superintendent’s Hearings, the most serious. The penalty imposed following a determination of guilt in a Tier III hearing can include a specified duration of cell confinement in SHU, and a recommended loss of good time, which can potentially extend the period of time that a person remains incarcerated. There is no maximum period of SHU confinement or recommended loss of good time that can be imposed through a Tier III hearing. 7 NYCRR § 254.7. Increasingly, SHU confinement has come to be viewed as harmful, particularly to the mental health of the individuals confined, and as, at least in some circumstances, cruel and unusual. See Peoples v. Fischer, 898 F.Supp.2d 618 (S.D.N.Y. 2012); Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J.L. & Pol'y 325, 327 (2006). In light of the severe penalties imposed through prison disciplinary hearings, the rules by which prisoners either waive or preserve issues for judicial review are of crucial importance to the fundamental fairness of the prison disciplinary process. For the reasons set forth below, this Court should hold that a prisoner who seeks to appeal a disciplinary hearing on the ground that the hearing officer unlawfully denied the prisoner’s request for witnesses or other evidence, has preserved an issue for review if he has placed the issue on the record, sufficiently so that it is clear what he is requesting, and, has not withdrawn the request. If the prisoner has done so, as appellant did, and the hearing officer denies the request, the additional requirement imposed by the lower courts, that the prisoner also verbally object to the hearing officer’s ruling, serves no purpose except to insulate the hearing disposition from review. QUESTIONS PRESENTED 1. Where a prisoner identifies witnesses and documents he wishes to present, and does not expressly withdraw the request, has he preserved a challenge to a denial of his requests, in the absence of a specific objection on the record? 2. Are requests for witnesses and documents in a prison disciplinary hearing constitutional rights that can only be waived by a knowing, intelligent, and voluntary waiver? 3 3. Has a prisoner preserved for review a claim that the hearing officer’s failure to inquire into the refusals of certain witnesses to testify resulted in a violation of his right to call witnesses, in the absence of a specific objection at the hearing? ARGUMENT Point 1: A Prisoner Need Not Object to Preserve Issues for Review The lower court’s decision implies that after a hearing officer denies a prisoner’s request, the prisoner must make a specific verbal objection to the hearing officer’s ruling in order to preserve the issue for judicial review. The inference is that the lower court is treating prisoners in disciplinary hearings like lawyers in trials. The comparison is inapt for two reasons. First, C.P.L.R § 4017 specifically provides that, “[F]ormal exceptions to rulings of the court are unnecessary.” Thus, the specific verbal objection required by the lower court in a prison disciplinary hearing exceeds what trained attorneys must do in civil trials. Second, to the extent attorneys are expected or required to make objections in legal proceedings, it is illogical and fundamentally unfair to treat prisoners as if they were attorneys for purposes of preservation and waiver, because prisoners, as a group, lack the education and language fluency necessary to perform high quality legal work. Attorneys are people who have completed high school, college, and law school, and are appropriately trained to provide legal representation, while prisoners often have very limited education, including no high school diploma. The state’s prison population is characterized by low levels of education and literacy, and high levels of mental illness. As of January 2014, only 59% of prisoners in the custody of the Department of Corrections and Community Supervision (DOCCS), had documentation of high school graduation. On that date 15.8% of the state’s prisoners had a reading score of 0 to 4th grade level; 12.1% had a 5th grade to 8th grade reading level; 11.6% had a 9th to 12th grade reading level; and, 1.5 percent were not tested.1 In addition, 16% of the DOCCS population was classified by the Office of Mental Health as mental health level 1 through 4, meaning they may need mental health treatment services.2 Further, some of the state’s prisoners lack fluency in the English language. Twenty-four percent of the 1 http://www.doccs.ny.gov/Research/Reports/2014/UnderCustody_Report_2014.pdf, p. 24. 2 http://www.doccs.ny.gov/Research/Reports/2014/UnderCustody_Report_2014.pdf, p. 25. 4 state’s prisoners are described as ethnically Hispanic,3 and 10% were born in a foreign country.4 It has been estimated that 10,000 of New York’s prisoners are Spanish language-dominant.5 New York State prisoners do not have legal training and they should not be expected or required to object to procedural rulings in the manner of professional attorneys. While prisoners are entitled to limited pre- hearing assistance to gather evidence and locate potential witnesses for a disciplinary hearing, prisoners have no right and are not permitted to be represented by counsel during a prison discipline hearing. Wolff v. McDonnell, 418 U.S. 539, 570 (1974); 7 NYCRR § 251-4; 7 NYCRR Part 254. In other contexts, courts have indicated that pro se litigants should be treated with solicitude and leniency. The Supreme Court has held that “technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Love v. Pullman Co., 404 U.S. 522, 527 (1972). See also Oscar Meyer & Co. v. Evans, 441 U.S. 750 (1979). In Hallstrom v. Tillamook County, 493 U.S. 20 (1989), the Court cited Love for the proposition that procedural technicalities are inappropriate in a statutory scheme initiated by laymen, while also noting that in cases typically handled by “trained lawyers who are presumed to be aware of statutory requirements” strict procedural requirements are appropriate. Moreover, it is well established that the “submissions of a pro se litigant must be construed liberally “to raise the strongest arguments they suggest.” Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006), quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). The requirement imposed by the court below, that a prisoner must verbally object to a ruling, is inappropriate for practical reasons as well. In this case, and in many others, the hearing officer did not inquire whether the charged prisoner objected to the rulings denying requests to present witnesses and documents. To make a verbal objection would have required the prisoner to interrupt the hearing officer, and blurt out the objection. This can cause unnecessary tension between the prisoner and the hearing officer. On occasion, prisoners have been threatened with removal and have actually been removed from disciplinary hearings, because of the manner in which they interposed objections to the hearing officer’s rulings. See Matter of Rupnarine v. Prack, 118 A.D.3d 1062 (3d Dep’t 2014); Matter of Holmes v Drown, 23 A.D.3d 793, 794 (3d Dep’t 2005) (removal improper where no indication petitioner posed a threat to institutional 3 http://www.doccs.ny.gov/Research/Reports/2014/UnderCustody_Report_2014.pdf, p. 5. 4 http://www.doccs.ny.gov/Research/Reports/2014/UnderCustody_Report_2014.pdf, p. 7 5 http://www.thebody.com/content/art14527.html. 5 security and correctional goals but where record showed that petitioner “slowed the hearing process by asking questions about information he thought could vindicate him.”) This Court should clarify that no verbal objection is required, in part to reduce the risk that heightened tension will lead to threats and/or the actual removal of prisoners from hearings. The Third Department has been inconsistent in its views of waiver and preservation in prison disciplinary hearings. In some decisions the Third Department has framed the standard for waiver in a prison disciplinary hearing, by stating that prisoners must raise the issue at the hearing. Matter of Rogers v. Mitchell, 194 A.D.2d 1059 (3d Dep’t 1993), citing Hopkins v. Blum, 50 N.Y.2d 1011(1983). In other cases, including the instant case, the Third Department has held that merely raising the issue is not sufficient unless the prisoner also objects to the hearing officer’s ruling. We agree an issue must be raised and presented to the hearing officer, yet once the request is made and the issue is raised, the further requirement that the prisoner must verbally object adds redundancy to the proceeding, and needlessly complicates a prisoner’s attempt to challenge a hearing officer’s decisions as unlawful. Moreover, this Court should strive to eliminate the gamesmanship that the lower courts’ approach to waiver and preservation engenders. At a disciplinary hearing that ended in 2012, appellant received a penalty including two years confinement in SHU. He has been diligently challenging the hearing disposition since then, with the assistance of counsel. He has now completed the two year SHU penalty, and still no court has even considered the merits of the issues he has raised to challenge his hearing. This Court should hold that if a prisoner’s request for witnesses or documents is clearly made, is denied, and is not withdrawn, the prisoner has preserved and is entitled to appeal on the ground that the request for witnesses or documents was improperly denied. Point 2: Constitutional Rights, Including the Rights to Present Witnesses and Documents, Can Only Be Waived Through a Knowing, Intelligent, and Voluntary Waiver A waiver “is ordinarily an intentional relinquishment of a known right or privilege.” Doe v. Marsh, 105 F.3d 106,111 (2d Cir. 1997), quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938). While constitutional rights may be waived, such a waiver must be made “voluntarily, knowingly, and intelligently.” Legal Aid Society v. City of New York, 114 F.Supp.2d 204 (S.D.N.Y. 2000), quoting Marsh, 6 105 F.3d at 111. “[A] waiver of a federally guaranteed constitutional right is, of course, a federal question controlled by federal law.” Brookhart v. Janis, 384 U.S. 1, 4(1966). A waiver of a fundamental constitutional right, such as the right of a prisoner to attend his or her own disciplinary hearing, must be a knowing, intelligent, and voluntary waiver. Mere acquiescence is insufficient to waive a fundamental constitutional right. See Rush v. Goord, 2 A.D.3d 1185 (3d Dep’t 2003); Alicea v. Selsky, 31 A.D.3d 1080 (3d Dep’t 2006). Indeed, courts must “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). In Wolff v. McDonnell, 418 U.S. at 566, the Supreme Court held that an “inmate facing disciplinary proceedings” has a limited constitutional right “to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Each of the three requests at issue in this case, the request for certain inmate witnesses who allegedly refused to testify, the request to present Officer Faulkner as a witness, and the request for the pertinent Unusual Incident Report, are of constitutional stature. Since the rights to call witnesses and to present documentary evidence are constitutional, appellant could not waive those rights by mere acquiescence, but only by a knowing, intelligent, and voluntary waiver. While the court below found that appellant did not object, there is no claim at all that appellant made the knowing, intelligent, and voluntary waiver necessary to establish the waiver of a constitutional right. The Appellate Division, Third Department has, at times, recognized that the right to call witnesses at a prison disciplinary hearing is constitutional, and can only be waived by a knowing and intelligent waiver. See, e.g., Matter of Johnson v. Coombe, 244 A.D.2d 644 (3d Dep’t 1997); Allen v. Goord, 14 A.D.3d 961 (3d Dep’t 2005); Matter of Escoto v. Goord, 9 A.D.3d 518 (3d Dep’t 2004). Yet in the instant case, the court below simply observed that the issues appellant sought to raise were not preserved for review, because appellant did not “specifically object at the hearing.” Matter of Henry v. Fischer, 120 A.D.3d 868 (3d Dep’t 2014). The court below offered no further explanation, including no explanation of why it did not view the right to call witnesses, or the right to present documentary evidence, as being of constitutional stature. This Court should hold that the right of a prisoner to request witnesses and documents in a disciplinary hearing is constitutional, and therefore cannot be waived by mere acquiescence. A valid waiver of a constitutional right requires a knowing, voluntary and intelligent waiver. Since appellant did not make a 7 knowing, voluntary, and intelligent waiver of any of his requests, he properly preserved his challenge to the hearing officer’s denial of his requests for witnesses and documents. Point 3: Appellant Preserved His Claim That the Hearing Officer’s Failure to Inquire Into the Refusals of Certain Witnesses to Testify Resulted in a Violation of Appellant’s Right to Call Witnesses In Matter of Barnes v. LeFevre, 69 N.Y.2d 649 (1986), this Court held that a hearsay report that a prisoner refused to testify on behalf of another prisoner, unsupported by a reason or any inquiry into the reason for the refusal, is a violation of the right to call witnesses. In the years since Barnes was decided the state’s lower courts have fleshed out the hearing officer’s duty to inquire into the reason for the refusal to testify. See, e.g., Matter of Silva v. Scully, 138 A.D.2d 717 (2d Dep’t 1988); Matter of Cordova v. Coughlin, 206 A.D.2d 475 (2nd Dep’t 1994); Matter of Dawes v. Selsky, 239 A.D.2d 796 (3rd Dep’t 1997); Matter of Johnson v. Goord, 247 A.D.2d 801 (3rd Dep’t 1998); Matter of Moore v. Goord, 281 A.D.2d 736 (3rd Dep’t 2001); Matter of Robinson v. Fischer, 68 A.D.3d 1687 (3rd Dep’t 2009); Matter of Jamison v. Fischer, 78 A.D.3d 1466 (3rd Dep’t 2010); Matter of Moye v. Fischer, 93 A.D.3d 1006 (3rd Dep’t 2012). The Appellate Division, Third Department has consistently held that in order to preserve an issue related to a witness refusal to testify, the charged prisoner must specifically ask the hearing officer to inquire into the reason for the refusal, or otherwise specifically object. Matter of McLean v. LeFevre, 142 A.D.2d 911 (3d Dep’t 1988; Matter of Love v. Prack, 89 A.D.3d 1307, 1308 (3d Dep’t 2011); Matter of Brown v. Selsky, 37 A.D.3d 891 (3d Dep’t 2007). The Third Department’s cases consistently misconstrue the right at issue when a prisoner refuses to testify at a disciplinary hearing. That is, appellant and other prisoners whose witnesses have allegedly refused to testify seek to vindicate their constitutional right to call witnesses, not a right to have the reason for a witness’ refusal to testify investigated. As noted above, the waiver of a constitutional right, including the right to call witnesses at a prison disciplinary hearing must be made knowingly, intelligently, and voluntarily. Prisoners present their requests for witnesses by identifying the witnesses and requesting their testimony. If a witness refuses to testify, nothing further is needed to preserve the issue, which can be resolved on judicial review by applying the law that has developed since Barnes was decided. 8 It is inappropriate to place the burden of conducting disciplinary hearings consistent with legal requirements on prisoners who are charged with misbehavior. Given the issues of education, language fluency, and mental health that characterize the prisoner population, prisoners may not know or understand the legal issues, or how to effectively raise those issues. This Court should hold that state employees tasked with conducting prison disciplinary hearings are responsible for conducting those hearings in compliance with legal standards, including those pertaining to the duty of a hearing officer to inquire into the reason for a witness refusal, regardless of whether the prisoner objects at the hearing, or even understands the relevance of Barnes. To the extent appellant requested certain witnesses who refused to testify, this Court should hold that appellant raised the issue by identifying witnesses he wished to call, and, because the request to present witnesses is constitutional, appellant preserved the issue for judicial review in that he did not make any knowing, intelligent, and voluntary waiver. For the reasons set forth above, as well as those set forth in appellant’s letter-brief, amicus Prisoners’ Legal Services of New York respectfully requests that this Court reverse the determination of the Appellate Division, Third Department, and grant such other and further relief as the Court deems just. Very truly yours, 9 James Bogin Managing Attorney