IN RE: Fernando A. JACKSON

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Court of Appeal, First District, Division 1, California.

IN RE: Fernando A. JACKSON, On Habeas Corpus.

AO24571.

Decided: August 30, 1984

John K. Van de Kamp, Atty. Gen., Kenneth C. Young, Paul D. Gifford, Deputy Attys. Gen., San Francisco, for respondent/appellant. Michael Satris, Donald Specter, Charles S. Bishop, San Quentin, for petitioner/respondent.

The People appeal from an order of the superior court filed September 28, 1983, and entered upon the habeas corpus application of Fernando A. Jackson, a state prison inmate.   The order decreed that “in all disciplinary hearings where a prison rule violation is charged which is based solely on a confidential source(s) that [the warden] require the hearing officer in such case [to] test the reliability of the confidential source(s) in camera.   Such in camera test must be conducted before a finding of guilt on the disciplinary charge may be found.”

At issue is the constitutional due process sufficiency of rule 3321 of the Rules and Regulations of the Director of Corrections, found in the California Administrative Code, title 15, section 3321 (hereafter rule 3321).

Rule 3321 states:

“(a) The identity of the source of information upon which a disciplinary action is based may be kept confidential if disclosure would endanger the safety of the source or endanger institutional security.   Precaution must be taken to insure the reliability of such information.

“(b) The fact of a confidential source will be documented in the information given to the inmate, and as much of the information received as can be disclosed without identifying the source will also be given the inmate.   Any document relating information from a confidential source will also include an evaluation of the reliability of the source, a brief statement of the reasons for the conclusions reached, and a statement of the reasons why the information or source is not disclosed.

“(c) No decision in a disciplinary proceeding may be based upon information from an undisclosed informant unless there is other written information which corroborates that received from the source or unless the circumstances surrounding the event and the known reliability of the source satisfy the finder of fact that the information is true.”

Jackson argued and the superior court held that rule 3321, in violation of the constitutional precept of due process, permits prison inmate discipline solely upon a correctional officer's report imparting uncorroborated information from a confidential prison inmate informer to the prison's disciplinary hearing officer.

We do not so interpret rule 3321.

Rule 3321, by its terms, was promulgated for the purpose of insuring the “institutional security” of state prisons.   It recognizes the need (1) for confidential information from reliable prison sources, and (2) for assuring such confidentiality, lest violent reprisal be visited upon the informing prison inmates.

Paragraph (c) of rule 3321, it will be noted, requires either express corroboration of the informing prison inmate's information, or, that “the circumstances surrounding the event and the known reliability of the source satisfy the finder of fact that the information is true.”

 Although perhaps inartfully drawn the latter quoted phrase, which we have emphasized, must reasonably be construed as impliedly requiring corroboration from “the circumstances surrounding the event and the known reliability of the source.”

As so interpreted, we are of the opinion that rule 3321 gives reasonable effect to the constitutional demands of due process.

But we inquire further into the superior court's ruling that the prison disciplinary hearing officer personally meet “in camera” with the informing inmate, thus himself to determine “credibility.”

In the superior court, the prison's Associate Warden and Chief Disciplinary Officer testified by declaration under oath, as follows:

“At San Quentin, disciplinary hearings are typically held in the housing unit in which the charged inmate is then located.   The hearings are held in one of the program administrator's or counselor's offices within the housing unit.

“Any inmate witnesses (typically for the defense) or informants would be brought to the hearing room in the housing unit in which the charged inmate is then located.   In many cases in which weapons have been involved in an incident leading to a disciplinary charge, the charged inmate is placed in a segregated housing unit.   In those cases, any inmate witnesses or informants in the general population or mainline areas would have to be transported to the segregated housing unit and escorted into it.   This is an unusual situation and would immediately attract the attention and pique the curiosity of the inmates in the segregated housing unit, thereby increasing the risk that the identity of any inmate informant would be revealed.

“In cases in which the charged inmate has been allowed to remain in his assigned housing unit, it would be very difficult for a disciplinary hearing officer to examine inmate informants during the course of a disciplinary hearing without revealing their identities to the other inmates in that unit.

“It is commonly the case that the identity of inmate informants is not even disclosed to the disciplinary hearing officer.   It is also very likely that if the identity of an informant is disclosed to a disciplinary hearing officer, the informant would refuse to speak when questioned by the hearing officer.   This is because many inmate informants provide information only to one or a few employees who have cultivated the inmates' trust and to whom the inmates feel they can divulge information without risking revealing their identities.   If the disciplinary hearing officer is not one of the employees whom an inmate informant confides in and trusts, it is not likely that he would divulge any information of a confidential nature to the hearing officer.

“The possibility does exist that the location of disciplinary hearing could be changed if the disciplinary hearing officer was required to independently interview any inmate informants.   However, inmates are generally aware that disciplinary hearings are typically held within the housing units, and any change in the location of a disciplinary hearing would attract their attention, thereby increasing the risk that the identity of any inmate informants brought to the hearing would be revealed.

“It is also possible that a secret rendevous with the disciplinary hearing officer and any inmate informant could be arranged.   However, the secrecy of any such rendezvous within the confines of the prison could not be guaranteed.   Moreover, for the reasons discussed above, it is not likely that an inmate informant would divulge any confidential information to a disciplinary hearing officer if the officer is not one of the employees whom the inmate has previously confided in or trusts.

“In sum, it would be very difficult to arrange for inmate informants to be examined by a disciplinary hearing officer without risking revealing their identities to other inmates.   Revealing the identities of inmate informants would seriously jeopardize their safety and the security of this institution.   Further, if inmates who have previously provided information, or those who might do so in the future, fear that their identities will be revealed if they must be examined by a disciplinary hearing officer, the effective use of inmate informants in the institution will be seriously hampered.” *

The nation's high court in Wolff v. McDonnell, 418 U.S. 539, 561–563, 94 S.Ct. 2963, 2977–2978, 41 L.Ed.2d 935, has spoken on the subject:

“Prison disciplinary proceedings ․ take place in a closed, tightly controlled environment peopled by those who have chosen to violate the criminal law and who have been lawfully incarcerated for doing so.   Some are first offenders, but many are recidivists who have repeatedly employed illegal and often very violent means to attain their ends.   They may have little regard for the safety of others or their property or for the rules designed to provide an orderly and reasonably safe prison life․   Guards and inmates co-exist in direct and intimate contact.   Tension between them is unremitting.   Frustration, resentment, and despair are commonplace.   Relationships among the inmates are varied and complex and perhaps subject to the unwritten code that exhorts inmates not to inform on a fellow prisoner.

“It is against this background that disciplinary proceedings must be structured by prison authorities;  and it is against this background that we must make our constitutional judgments, realizing that we are dealing with the maximum security institution as well as those where security considerations are not paramount.   The reality is that disciplinary hearings and the imposition of disagreeable sanctions necessarily involve confrontations between inmates and authority and between inmates who are being disciplined and those who would charge or furnish evidence against them.   Retaliation is much more than a theoretical possibility;  and the basic and unavoidable task of providing reasonable personal safety for guards and inmates may be at stake, to say nothing of the impact of disciplinary confrontations and the resulting escalation of personal antagonisms on the important aims of the correctional process․   In any event ․ there would be great unwisdom in encasing the disciplinary procedures in an inflexible constitutional strait-jacket that would necessarily call for adversary proceedings typical of the criminal trial, very likely raise the level of confrontation between staff and inmate, and make more difficult the utilization of the disciplinary process as a tool to advance the rehabilitative goals of the institution.   This consideration, along with the necessity to maintain an acceptable level of personal security in the institution, must be taken into account․”

To this elaboration, the state's high court in the context of state prison disciplinary proceedings adds:  “Only a minimum of procedural safeguards is required by Wolff for such hearings, explicitly so as to accommodate the security needs in the volatile prison environment.”  (In re Davis, 25 Cal.3d 384, 396, 158 Cal.Rptr. 384, 599 P.2d 690);  “[i]n determining applicable due process safeguards, it must be remembered that ‘due process is flexible and calls for such procedural protections as the particular situation demands.’  ․  [T]he extent to which due process relief will be available depends on a careful and clearly articulated balancing of the interests at stake in each context.”  (People v. Ramirez, 25 Cal.3d 260, 268–269, 158 Cal.Rptr. 316, 599 P.2d 622);  “[p]rison life is fraught with animosities and alliances motivated in ways that the uninitiated could scarcely imagine.”  (People v. Mroczko, 35 Cal.3d 86, 97, fn. 8, 197 Cal.Rptr. 52, 672 P.2d 854.)

 And judicial notice may be taken (see Evid.Code, §§ 451, subd. (f), 459) of the frequent publicized occurrences of prison violence directed toward informing inmates.   They give emphasis to Wolff v. McDonnell's pronouncement that:  “The reality is that disciplinary hearings and the imposition of disagreeable sanctions necessarily involve confrontations between ․ inmates who are being disciplined and those who would charge or furnish evidence against them.   Retaliation is much more than a theoretical possibility;  and the basic and unavoidable task of providing reasonable personal safety for guards and inmates may be at stake․”  (418 U.S. at p. 562, 94 S.Ct. at p. 2978.)

We are unadvised how, consistent with a reasonable expectancy of nonviolence, the court ordered in-camera hearing might be implemented.   It is unlikely that an informing inmate going to a disciplinary hearing officer's headquarters, or the hearing officer going to the inmate's cell, or the two meeting anywhere on prison grounds, or being simultaneously absent from the prison area for a rendezvous elsewhere, would be unobserved by the ordinarily dense prison population.   As stated by the Associate Warden witness, such “unusual situation ․ would immediately attract the attention and pique the curiosity of the inmates ․, thereby increasing the risk that the identity of any inmate informant would be revealed.”

A strikingly similar factual context arose in the federal penitentiary at Marion, Illinois, as reported in the case of McCollum v. Miller, 695 F.2d 1044 (7th Cir.).   There in a prison disciplinary matter procedures reasonably comparable to rule 3321 were followed.   The subject of prison discipline, one Ramirez-Rodriguez, (as here) had contended that the disciplinary committee should themselves, by an in-camera hearing, personally interview the informers thus to determine their credibility.   Ruling otherwise, the court found substantial danger of a “tip-off” to the informer's identity, saying:

“Such a tip-off could be lethal․   Violent crime directed at other inmates is a common experience in our prisons today, and ‘rats' are frequent targets․   In the short run revealing the names of informants against a gang of extortionists and homosexual molesters could lead to the death or serious injury of some or all of the informants:  in the long run it would dry up the supply of informants and allow extortion to rage unchecked through Marion․  [W]e are not sure whether it is feasible to ․ require the Committee to interview—in camera, of course—some or all of the informants.   Maybe that is too dangerous.   Maybe the prison grapevine is so efficient that Ramirez-Rodriguez would learn who had been interviewed by the Committee—or maybe, whether or not it is that efficient, informants would be afraid to give testimony other than through the investigator․   You need a better feel for Marion than we have to make judgments in these sensitive matters;  and they happen to be matters of life and death.”  (Emphasis added;  695 F.2d pp. 1048–1049.)

Agreeing, Wolff v. McDonnell, supra, states:  “The better course ․ is to leave these matters to the sound discretion of the officials of state prisons.”  (418 U.S. at p. 569, 94 S.Ct. at p. 2981.)

And in such a situation, “due process may be satisfied where the witness relaying information provided by a confidential informant testifies before the [Inmate Disciplinary Committee] that he knows the informer, that he used him in the past, and that the informer had first hand knowledge of the incident reported.”  (Kyle v. Hanberry, 677 F.2d 1386, 1390 (11th Cir.);   emphasis added.)

Moreover, we think the facts of the case before us illustrate the wisdom of the above-noted judicial authority.   In the prison were two gangs, or mobs, of minority prison inmates engaged in a sort of warfare with each other.   Six members of one gang armed with prison-made weapons stabbed members of the opposing racial group.   A search of known members of the attacking gang disclosed 12 such stabbing weapons in their shoes.   One untested, and two known previously reliable inmate informers had confidentially revealed to a correctional officer that Jackson, an apparent member of the assaulting gang, had manufactured and distributed the weapons.   The violent fate of such informers, had even slight suspicion been directed toward them, appears manifest.

Persons may not be deprived of their lives, liberty, or personal safety (a liberty interest) without due process of law.  (U.S. Const., Amendments V and XIV;  Cal. Const., art. I, § 7.)   We are of the opinion that rule 3321 reasonably accommodates such rights of all prison inmates, informers and those informed against.   We so hold.

 We are unpersuaded by Jackson's supplemental argument that “prison officials regularly fail to follow the mandate of 15 Cal.Adm.Code, § 3321.”   The superior court did not so find, and we find no supportive substantial evidence.  “ ‘[I]t is presumed that official duty has been regularly performed,’ ” and that in the absence of contrary evidence, courts and quasi-judicial agencies “ ‘properly followed established law.’ ”  (Ross v. Superior Court, 19 Cal.3d 899, 913, 141 Cal.Rptr. 133, 569 P.2d 727.)

For these several reasons we find error in the superior court's ruling.

The order of September 28, 1983 is reversed and set aside.

FOOTNOTES

FOOTNOTE.   The superior court found the official's suggestion of danger to the informing prison inmate to be “ridiculous.”

ELKINGTON, Associate Justice.

RACANELLI, P.J., and HOLMDAHL, J., concur.

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