Friday, October 14, 2011
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C.A. Allows Some Use of Secret Evidence in Parole Proceedings
By KENNETH OFGANG, Staff Writer
The Board of Parole Hearings may consider confidential evidence at a parole suitability hearing to the extent required to protect informants, the Sixth District Court of Appeal ruled yesterday.
In granting the state’s petition for writ of mandate, the court adopted stricter limits on the use of such evidence than advocated by the attorney general, but not as strict as those imposed by a Santa Clara Superior Court judge. The decision returns Brice Glasgow’s cast to the trial court, with directions that confidential information relied on in denying his parole—other than the identities of informants—be disclosed to his attorney, in camera.
Glasgow is serving 30 years to life in prison for the murder of Ralph Collins. He was also convicted of assaulting Pat Watts with a deadly weapon.
Victims Shot
According to a 1980 newspaper account, as well as a presentence report, Glasgow and another man entered the Palo Alto apartment that Watts, Glasgow’s niece, shared with Collins, her boyfriend. A struggle ensued, and when Glasgow—who has a history of arrests for larceny, burglary, and other crimes—began shooting Collins, Watts threw herself on Collins to protect him and was shot in the back.
After the other man pulled Watts off Collins, Glasgow shot him several more times. He died of wounds to the head, chest and abdomen.
At a 2010 parole hearing, the board found Glasgow suitable for parole, despite having received what it said was confidential information that Glasgow had either sold his prescribed cancer pain reliever or had done “something inappropriate with it.” The board said it would not use the information, however, after Glasgow affirmed that there was no investigation pending and that the medication was only dispensed by prison authorities and consumed in their presence.
Then-Gov. Arnold Schwarzenegger, however, vetoed the board’s decision. He cited the gravity of the crime, as well as Glasgow’s insufficient “understanding of the circumstances of his...offense,” failure to fully accept responsibility for his actions, lack of genuine remorse, negative conduct in prison, and prior criminal history.
As a specific example of negative conduct, the governor cited “reliable information” that Glasgow was dealing prescription drugs. When Glasgow filed his habeas corpus petition challenging the governor’s decision, the state’s response included confidential records, lodged conditionally under seal, and an explanation that inmates had informed correctional officers that Glasgow sold them drugs.
Glasgow moved to unseal and disclose the confidential information, claiming that the use of such information would otherwise violate due process, and that he was entitled to test the reliability of the information, with appropriate redactions to protect the sources.
‘Untenable’ Position
Superior Court Judge Jerome Brock sided with the inmate after reviewing the documents. The state, he said, was taking the “untenable” position that the inmate could be denied release based on reports that he and his counsel were not allowed to see.
He gave the state the choice of disclosing the evidence or having it excluded. The state, however, filed a writ petition in the Court of Appeal, which granted a stay and considered the reports under seal.
Writing yesterday for the court, Justice Eugene Premo said that because the information appeared to be reliable, and because there was an apparent need for confidentiality, the information was conditionally privileged and it was an abuse of discretion for the trial judge to condition its use on disclosure.
The justice cited Evidence Code Sec. 915(b), which provides for an in camera hearing to resolve a claim that evidence is subject to the official-information, trade-secret, or attorney-work-product privilege. Such a hearing, Premo said, will “assist the superior court in determining how much of the confidential information can be disclosed to Glasgow’s counsel without revealing informants’ identities.”
The case is Ochoa v. Superior Court (Glasgow), 11 S.O.S. 5520.
Copyright 2011, Metropolitan News Company