Wednesday, September 9, 2020
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C.A. Files Redacted Opinion, Full Version is Sealed; Security Concerns Are Cited
Bendix Says ‘Some Evidence’ of Inmate’s Continued Dangerousness Supports Parole Board’s Decision Rescinding Release Date
By a MetNews Staff Writer
The Court of Appeal for this district yesterday filed an opinion which was partially redacted for the sake of the security of persons who supplied confidential information to the Board of Parole Hearings—information, of an undisclosed nature—which caused it to rescind a parole date for a man who committed a 1982 slaying.
“We cannot fail to acknowledge the tension between the right to classify information as confidential, which if known to the inmate, could endanger the safety of a person or the security of the institution…, and the resulting inability of an inmate to challenge that information as inaccurate or unreliable,” Justice Helen I. Bendix of Div. One said in her opinion, which was not certified for publication.
Bendix declared that the requisite standard of “some evidence” of continued dangerousness of the prisoner was met by the board in cancelling parole in 2016. Nonetheless, her opinion grants a petition for a writ of habeas corpus filed by inmate Kalvin Lamont Harris, holding that he should have been allowed to call credibility witnesses at his rescission hearing, and ordering that a new rescission hearing be conducted within 30 days following finality of the opinion (on Oct. 6).
Supreme Court Decision
In explaining the partial redaction of the opinion and sealing of the full version, Bendix pointed to competing interests. She cited the California Supreme Court’s 1972 opinion in In re Prewitt.
There, Chief Justice Donald Wright (now deceased) wrote for a unanimous court in a case in which the Adult Authority (forerunner of the Board of Parole Hearings) had rescinded a parole date. Wright said:
“From the inmate’s point of view a policy of nondisclosure increases the potential for unfairness. Unless the prisoner learns what information is in the Authority’s possession he cannot intelligently decide what subjects to discuss at his predisposition interview.”
The chief justice said that “[a]t a minimum, and subject to limitation only when an informant will be exposed to an undue risk of harm, an inmate should be provided with a copy of any document” under consideration.
2011 Decision
Bendix also noted the Sixth District Court of Appeal’s 2011 decision in People v. Ochoa. Acting Presiding Justice Eugene M. Premo said in his opinion in that case (which was quoted by the California Supreme Court in People v. Landry in 2016):
“There is a valid state interest in keeping certain prison inmate records confidential to (1) protect individuals, including informants inside and outside of prison, (2) insure institutional security, and (3) encourage candor and complete disclosure of information concerning inmates from both public officials and private citizens.”
In Landry, the Court of Appeal directed the Superior Court to set a hearing before the warden with a disclosure to the inmate’s lawyer, only, of “as much of the confidential information that can be disclosed without revealing informants’ identities.”
Bendix wrote that taking into account the principles that have been articulated, “we have redacted information classified as confidential from our opinion in the public file and have sealed our unredacted opinion to enable further review.”
‘Some Evidence’
She went on to say, in finding that “some evidence” supported the rescission of a parole date:
“Confidential memoranda supported the conclusion that Harris developed radicalized ideologies while incarcerated and it is undisputed that the Board did not consider those memoranda in 2014 when it initially granted Harris parole. Harris does not dispute the conclusion that a person believing radical Islamic ideology presents a risk; instead he argues that he does not believe in that ideology. The Panel must have given more weight to the information in the confidential memoranda than to Harris’s testimony eschewing radicalization, and this court does not reweigh the Panel’s credibility determinations.”
The parole board panel held both public and private sessions. At the end of the public session, it was announced, simply, that “after review of the record, new confidential information, and discussion with all parties, including the witnesses, we find good cause to rescind the parole grant of June 6, 2014.”
That was too flimsy an explanation, Harris protested. Bendix responded:
“The Panel, however, relied substantially on confidential information in making its rescission decision and in the confidential portion of the transcript, the Panel referenced the specific confidential information supporting its rescission of Harris’s parole.”
Evidence, she noted, was in the form of four confidential memoranda, the dates of which were disclosed, but not the content.
In announcing the granting of habeas corpus relief, in the form of ordering a new rescission hearing, Bendix set forth:
“We conclude that because Harris’s credibility was at issue and the character witnesses could have bolstered it, exclusion of the witnesses was not harmless beyond a reasonable doubt. This is all the more apparent given Harris’s lack of access to the confidential information in his file and inability to challenge it directly.”
The case has been in a state of bouncing since 2014.
After the board in 2014 set a parole date, then-Gov. Jerry Brown reversed that decision, reciting the facts relating to the Feb. 27, 1982 murder by Harris, and commenting:
“I am concerned about confidential information appearing in Mr. Harris’s file, including a report that was written after Mr. Harris’s 2014 parole hearing and therefore was not reviewed by the Board prior to its finding of suitability. I ask the Board to carefully examine Mr. Harris’s entire confidential file prior to his next suitability hearing, especially the most recent memorandum, and to conduct an investigation into its veracity if necessary. Based on this information, however, I am not prepared to release him at this time.”
On March 4, 2016, the Los Angeles Superior Court granted a petition for a writ of habeas corpus, reinstating the board’s 2014 decision. The board, sitting en banc, referred the matter in 2016 to a three-member “rescission panel.”
It, then, overturned the 2014 decision.
Los Angeles Superior Court Judge William C. Ryan on May 8, 2017, denied Harris’s petition for a writ of habeas corpus; on Feb. 8, 2018, the Court of Appeal denied the petition, noting that a new suitability-for-parole was scheduled for just eight days off.
The California Supreme Court on May 1, 2019, nonetheless granted review and instructed Div. One to consider “why relief should not be granted because there was insufficient evidence to support the November 4, 2016 decision by the Board of Parole Hearings to rescind petitioner’s parole grant.”
The case is People v. Harris, B297363.
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