Opinion

White, Phil v. Indiana Parole Board

Court: Court of Appeals for the Seventh Circuit
Filed: Sep 26, 2001
Status: Published
On the bench: Per Curiam
Nature of suit: prisoner
Cited by: 0 cases
Authority: More cited than 39.7%

CAB that relies on testimony of confidential informant must in some way document reliability of informant

How later courts described this case

CAB that relies on testimony of confidential informant must in some way document reliability of informant
noting that when CAB excludes evidence for security-related reasons, it should note the exclusion
due process requires prison officials at some point to disclose reasons for refusal to call witnesses requested by inmate at disciplinary hearing
members of prison disciplinary boards are not treated as judges for the purpose of absolute immunity

Written by the judges who cited it.

The opinion

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-2425

Phil White,

Petitioner-Appellant,

Indiana Parole Board,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:99cv0633S--Allen Sharp, Judge.

Argued June 7, 2001--Decided September 26, 2001

Before Coffey, Easterbrook, and Rovner,

Circuit Judges.

Easterbrook, Circuit Judge. While

confined in the Marion County Jail, Phil

White was accused of drug trafficking

with the aid of Yvonne Davis, a prison

employee, and Shaquilla Harrison, Davis’s

daughter (and the mother of White’s

child). The prison’s Conduct Adjustment

Board stripped White of 120 days’ good-

time credit; it also reduced his credit-

earning classification. White took two

administrative appeals, first to the

warden and then to a tribunal maintained

by the Indiana Department of Corrections.

Both the warden and the Department

sustained the Board’s decision, although

the Department increased White’s credit-

earning rate. Indiana does not provide

judicial review of such actions, so

White’s next stop was federal court,

where he contends in this action under 28

U.S.C. sec.2254 that the Board did not

afford him due process of law. See

Edwards v. Balisok, 520 U.S. 641 (1997).

White complains that the officer who

investigated and filed the trafficking

charge conferred with the Board’s members

after the close of evidence, and that he

did not receive a copy of a videotaped

interview Davis had with investigating

officers. The district court denied the

petition.

1. The day after oral argument of his

appeal, White was released on parole.

Indiana contends in supplemental

memoranda filed at our request that

White’s parole makes this proceeding

moot, on the theory that only the

terminal date of his sentence--a date

unaffected by good-time credits-- now

concerns him. The Board’s decision

delayed his parole but does not affect

how long parole continues after release.

Indiana law provides that parole never

lasts more than two years, or the end of

the sentence, whichever comes first. I.C.

sec.35-50-6-1. White was paroled on June

8, 2001, so his supervision will end on

June 7, 2003, three days before his

sentence expires. More good-time credits

would not advance the expiration of his

sentence. Majors v. Broglin, 531 N.E.2d

189 (Ind. 1988). Because neither the two-

year period nor the end of the sentence

depends on the disciplinary action, the

state contends that the Board’s decision

has no current consequences and the case

must be moot. See Spencer v. Kemna, 523

U.S. 1 (1998); Murphy v. Hunt, 455 U.S.

478 (1982).

The difficulty with this position is

that it disregards the link between good-

time credits and release on parole. The

Board’s decision postponed the start of

White’s parole by approximately six

months. Because parole in Indiana lasts a

maximum of two years, the Board’s

decision also postpones the end of

White’s supervision: had he been

released, say, on December 8, 2000, his

parole would be over by December 7, 2002,

rather than June 7, 2003. This means that

the federal court has the power to affect

the duration of White’s custody (for

parole is a form of custody): If the

disciplinary hearing is deemed defective,

the court may order Indiana to terminate

White’s parole when it would have

expired, but for the Board’s decision on

the drug-trafficking charge. The

proceeding is not moot.

2. Indiana offers a second procedural

contention: that unless the Board’s

procedures contravene a decision of the

Supreme Court, or apply that Court’s

decisions unreasonably, collateral relief

is precluded. The state relies on 28

U.S.C. sec.2254(d), as amended by the

Antiterrorism and Effective Death Penalty

Act of 1996:

An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted with respect to any

claim that was adjudicated on the merits

in State court proceedings unless the

adjudication of the claim--

(1) resulted in a decision that was

contrary to, or involved an unreasonable

application of, clearly established

Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was

based on an unreasonable determination of

the facts in light of the evidence

presented in the State court proceeding.

Both the language of the aedpa and

Williams v. Taylor, 529 U.S. 362, 412

(2000), show that, when this

provisionapplies, decisions of courts

other than the Supreme Court must be

disregarded. Only that Court’s own

decisions, and not glosses applied by

other tribunals, may be enforced on

collateral review. Cf. Tyler v. Cain, No.

00-5961 (U.S. June 28, 2001). This could

be a substantial advantage for Indiana,

because Wolff v. McDonnell, 418 U.S. 539

(1974), the Supreme Court’s principal

decision articulating procedural

requirements for prison disciplinary

hearings, does notdirectly support either

branch of White’s argument.

But does sec.2254(d) apply? White is "a

person in custody pursuant to the

judgment of a State court", but how was

his "claim . . . adjudicated on the

merits in State court proceedings"? The

Conduct Adjustment Board is not a court,

and Indiana did not afford judicial

review of such a Board’s decision. How

then could sec.2254(d) be relevant?

According to the state, sec.2254(d) uses

the word "court" in different ways. The

first reference ("judgment of a State

court") uses the word in its normal

sense, as an institution with legally

trained judges following rules of

evidence and adversarial procedure with

lawyers available to both sides. (Only

such an institution may enter a lawful

judgment committing an accused to

prison.) The second time the word appears

("adjudicated on the merits in State

court proceedings"), according to the

state, it takes a special sense

equivalent to "any adjudicatory body."

Agencies can and do adjudicate even

though they follow inquisitorial

procedures and lack lawyers; the Board is

an agency; hence, Indiana insists, it is

a "court" for purposes of sec.2254(d).

This is not a natural reading of the

word--not only because it is unusual to

treat agencies as courts but also because

it requires the word "court" to have two

meanings in one sentence. Still, the

state has some support in this circuit’s

decisions. Markham v. Clark, 978 F.2d 993

(7th Cir. 1992), reads the word "court"

in sec.2254(b)(1)(A) to include all

adjudicatory bodies. (Markham predates

the aedpa, but the language it interpreted

has been carried forward with minimal

change.) Section 2254(b)(1)(A) requires

state prisoners to exhaust "the remedies

available in the courts of the State"

before seeking collateral relief in

federal court. Markham holds that an

appellate apparatus within a prison

system is a "court" for this purpose and

thus that state prisoners deprived of

good-time credits must use all available

administrative remedies. That is why

White had to appeal to the warden and

then the Indiana Department of

Corrections before seeking federal

review. Section 2254(c) supports this

usage of the word "court" by providing

that "[a]n applicant shall not be deemed

to have exhausted the remedies available

in the courts of the State, within the

meaning of this section, if he has the

right under the law of the State to

raise, by any available procedure, the

question presented." (Emphasis added.)

One could read sec.2254(c) as limited to

any judicial procedure (so that state

prisoners must resort to collateral

attacks, mandamus, and other remedies, as

well as direct appeals), but Markham

concluded that it means any procedure at

all, judicial or not. Nothing like

sec.2254(c) enlarges the definition of

"court" for purposes of sec.2254(d), and

the latter section serves a function--

enlarging the extent to which state

judgments receive full faith and credit,

despite provision for collateral attacks-

-that is more closely linked to the

traditional understanding of a court.

Markham has a second theme: that "how

states carve up adjudicative functions

between courts and agencies is in general

and in this particular no business of the

federal courts, for the Constitution does

not prescribe any particular allocation

or separation of powers among the states.

. . . If one state wants to use an

administrative body where another state

would use a conventional ’court,’ its

choice is a matter of indifference from

the standpoint of the principles of

federalism and comity". 978 F.3d at 995.

This is undoubtedly true for many

subjects; states may (and do) allocate

some apparently legislative powers to

judges, and adjudicatory powers to non-

tenured officials (whether called courts

or agencies). But a few federal laws

recognize differences among branches of

state government. One of these is the

Full Faith and Credit Clause, Art. IV

sec.1, which provides: "Full Faith and

Credit shall be given in each State to

the public Acts, Records, and judicial

Proceedings of every other State. And the

Congress may by general Laws prescribe

the Manner in which such Acts, Records

and Proceedings shall be proved, and the

Effect thereof." (Emphasis added.)

Section 2254(d) specifies the extent to

which states’ decisions must be respected

in collateral attacks and thus like 28

U.S.C. sec.1738 exercises the power

granted by the second sentence of the

Full Faith and Credit Clause. We know

from University of Tennessee v. Elliott,

478 U.S. 788 (1986), that for purposes of

sec.1738 a state agency is not a judicial

body, and that a federal tribunal

therefore may reexamine de novo issues

determined by a state agency but not

reviewed by that state’s judiciary. See

also Astoria Federal Savings & Loan Ass’n

v. Solimino, 501 U.S. 104 (1991). Cf.

Cleavinger v. Saxner, 474 U.S. 193 (1985)

(members of prison disciplinary boards

are not treated as judges for the purpose

of absolute immunity). Elliott and

Astoria strongly imply that state

disciplinary boards are not the sort of

"courts" whose decisions have independent

legal force when Congress provides for

federal review of the same topics. If

administrative decisions do not have

preclusive effect under sec.1738 (or the

Full Faith and Credit Clause itself), why

should they have preclusive effect under

sec.2254?

Nonetheless, our early encounters with

sec.2254(d) as amended by the aedpa did

not sharply distinguish judicial from

administrative decisionmakers. Evans v.

McBride, 94 F.3d 1062 (7th Cir. 1996),

reserved the question whether the amended

sec.2254(d) applies to cases pending when

the aedpa was enacted, implying in the

process that if it does apply then a

disciplinary board is a "court"--for the

petitioner in Evans was seeking relief

from a decision concerning good-time

credits, and the state judiciary had not

addressed his contentions. We wrote in

Evans, 94 F.3d at 1065: "Our circuit has

issued a number of opinions requiring

prison disciplinary officials to explain

their actions more fully, . . . but if

these are extensions of (rather than

glosses on) the decisions of the Supreme

Court, they provide a poor foundation for

relief under the amended sec.2254." Yet

disregard of circuit-level precedent

would be required by sec.2254(d) only if

prison disciplinary boards count as

"courts." Evans did not go further, but

its implication has been repeated in

dictum by several later cases, none of

which analyzes the issue beyond citing

Evans, which itself did not analyze the

question. See, e.g., Gaither v. Anderson,

236 F.3d 817, 819-20 (7th Cir. 2001);

Sweeney v. Parke, 113 F.3d 716, 719 (7th

Cir. 1997).

Section 2254 is one among many parts of

the aedpa that make the handling of

federal collateral attack turn on what a

state "court" has done. Another is

sec.2253(c), which says:

(1) Unless a circuit justice or judge

issues a certificate of appealability, an

appeal may not be taken to the court of

appeals from--

(A) the final order in a habeas corpus

proceeding in which the detention

complained of arises out of process

issued by a State court; or

(B) the final order in a proceeding

under section 2255.

Does a state prisoner need a certificate

of appealability when seeking federal

collateral review of a prison

disciplinary board’s decision revoking

good-time credits? We gave a negative

answer in Walker v. O’Brien, 216 F.3d 626

(7th Cir. 2000), holding among other

things that the additional time served as

a result of a disciplinary board’s

decision is not "detention [that] arises

out of process issued by a State court".

That conclusion was debated within the

court; three judges thought that

detention "arises out of process issued

by a State court" whenever imprisonment

has been authorized by a criminal

sentence. 216 F.3d at 642-44. Thus it is

possible to see how collateral attacks

concerning good-time credits could

require certificates of appealability

even if a disciplinary board is not a

"court"; but it is impossible to see how,

if a disciplinary board is a "court," an

appeal would be possible without a

certificate of appealability. The assump

tion made in cases such as Evans

therefore is irreconcilable with the

holding of Walker in addition to the

holdings of Elliott and Cleavinger.

To eliminate the tension among this

court’s decisions, we now disapprove any

language in Evans, Sweeney, Gaither, and

similar opinions implying that prison

disciplinary boards are "courts" for the

purpose of 28 U.S.C. sec.2254(d). That

portion of the aedpa accordingly does not

affect collateral review of decisions

revoking good-time credits unless states

provide for judicial review of these

decisions--review that under sec.2254(c)

(as interpreted in Markham) a prisoner

must pursue. White did pursue all

available state corrective processes, but

Indiana does not make a judicial process

available, so sec.2254(d) does not give

that state the benefit of limitation on

the scope of federal collateral attack.

(So far as we can tell, this decision is

the first anywhere in the country to

produce a holding, as opposed to dicta,

about the question. Evans, Sweeney, and

Gaither at least adverted to the

question, though they did not resolve it.

Courts elsewhere do not ever advert to

the subject. For example, the eighth

circuit has treated prison disciplinary

boards as courts with no explanation, see

Closs v. Weber, 238 F.3d 1018 (8th Cir.

2001), while the fifth circuit has

employed de novo review with no

explanation, see Broussard v. Johnson,

2001 U.S. App. Lexis 14170 (5th Cir. June

25, 2001); Hudson v. Johnson, 242 F.3d

534 (5th Cir. 2001).)

3. Now we arrive at the merits, where

our conclusion that the Board is an

agency rather than a court has a

different significance. White’s principal

contention is that the Board violated the

due process clause of the fourteenth

amendment because Officer Thompson, who

prepared the conduct report charging him

with drug trafficking, remained in the

hearing room after the close of the

evidence and, we must presume, discussed

the charge with the Board’s members

before or even during their

deliberations. (Because there is no

written record, we cannot tell how long

Thompson remained and thus we indulge the

assumption that he stayed through the

deliberations.) If the Board were a

court, ex parte proceedings would be

irregular and would raise constitutional

issues--and although the due process

clause does not apply to the states every

ethical requirement for federal judges,

see Del Vecchio v. Illinois Department of

Corrections, 31 F.3d 1363 (7th Cir. 1994)

(en banc), receipt of evidence off the

record, or lobbying in chambers by a

witness for one side, would be a

substantial problem under the

Constitution. But non-record discussions

between an agency’s decisionmakers and

members of the agency’s staff are common

and proper; for example, Commissioners of

the Federal Trade Commission routinely

discuss pending cases with that agency’s

economic staff, even though the

economists also give counsel to (and

testify for) the agency’s internal

prosecutor (the Bureau of Competition).

When the Chairman of the ftc has a private

meeting with the agency’s Chief

Economist, does this spoil all cases then

under advisement? Hardly. Agencies and

courts have different methods of

resolving disputes; what is unthinkable

for a court may be normal for an agency;

and although the ftc must in the end

defend its decisions by reference to the

administrative record, no rule of law

prevents the Commissioners (or, say,

Members of the National Labor Relations

Board) from discussing pending matters

with agency employees. See 5 U.S.C.

sec.554(d).

Once a person has been convicted and the

sentence specified by a court, informal

proceedings determine how much of that

sentence must be served. The role (and

the propriety) of ex parte contacts are

clearest in the pardon process. Governors

rarely hold hearings on the record; they

receive information and advice from many

sources, including prosecutors, victims,

and witnesses. None of these steps is

constitutionally questionable, and none

becomes so if the governor delegates the

pardoning power to an agency that holds

formal hearings; a governor (or other

holder of the pardoning power) need not

provide any process at all and may

resolve matters as he pleases. See

Connecticut Board of Pardons v. Dumschat,

452 U.S. 458 (1981). Likewise with

parole. See Greenholtz v. Nebraska Penal

Inmates, 442 U.S. 1 (1979). Officials

empowered to act on applications for

release regularly use informal process,

receiving unsworn (and sometimes off-the-

record) recommendations from prosecutors,

victims, and witnesses. In the wake of

Wolff decisions about good-time credits

are subject to more constitutional

limitations than decisions about pardons

or parole, but Wolff did not require

disciplinary boards to follow the

judicial model. To the contrary, Wolff

concluded that disciplinary boards need

not place on the record all of the

evidence that influences their decisions.

The Court recognized that considerations

of institutional security may militate

against full disclosure. In White’s own

proceeding, although a "Report of

Conduct" detailing the charge was made

available, a separate "Case Report" was

held in confidence, a step that White

does not contest. If the Case Report

could be held back--as portions of

presentence reports in criminal

prosecutions may be held back--it is hard

to see how there could be a

constitutional objection to allowing

Officer Thompson to discuss that Case

Report with the Board in confidence. We

do not know what Thompson said to the

Board’s members and thus cannot be sure

that his contribution was limited to

discussing the portion of the evidence

that was legitimately held in confidence,

or subjects such as selecting the right

penalty; this is an inevitable

consequence of off-the-record

discussions. But it is a risk common to

all non-record proceedings; a reviewing

court cannot know what happened even in

the public portions of a prison

disciplinary hearing.

Because prison disciplinary boards are

entitled to receive, and act on,

information that is withheld from the

prisoner and the public, they must be

entitled to discuss that evidence off the

record with persons who know its

significance. Wolff holds that prisoners

are entitled to impartial decisionmakers-

-Thompson could not have been given a

vote on the Board, see 418 U.S. at 570-

71; Merritt v. De Los Santos, 721 F.2d

598 (7th Cir. 1983); Whitford v. Boglino,

63 F.3d 527, 534 (7th Cir. 1995)--but

there is no reason to believe that the

members of this Board were other than

impartial. Listening to a point of view

does not constitute bias. If it did,

judges could not listen to witnesses or

lawyers who represent adversarial

positions, and they probably could not

consult with the authors of presentence

reports or read articles in law reviews,

for both presentence-report writers and

professors may have axes to grind.

Disciplinary boards are made up of prison

employees; Thompson surely was talking to

this panel’s members routinely, and on

other occasions Thompson likely served as

a member and received evidence presented

by the officers who made up White’s

disciplinary panel. Such daily

camaraderie and mixing of roles pose

greater threats to impartiality than does

listening to commentary on off-the-record

evidence in a particular case--yet it is

clear from Wolff that the Constitution

does not require prisons to import

professional decisionmakers such as

administrative law judges to run the

disciplinary process. The Court could

have required a more adversarial approach

to prison discipline but held instead

that an inquisitorial model suffices, if

modified by formal separation of the

witnesses and decisionmakers in the

particular case. Formal separation was

respected here--for Thompson was not a

member of the Board. Baxter v.

Palmigiano, 425 U.S. 308 (1976), warns

the courts of appeals not to add to the

procedures required by Wolff, which,

Baxter held, represents a balance of

interests that should not be further

adjusted in favor of prisoners. Indiana

has played by the rules articulated in

Wolff. Cf. Edwards, 520 U.S. at 647.

4. Two pieces of confidential evidence

were received at the hearing: the Case

Report and the videotaped interview with

Yvonne Davis. As we have mentioned, White

does not protest the confidentiality of

the Case Report, but he does contend that

he should have received the tape of the

interview with Davis. White believes that

lack of access to this tape prevented him

from presenting favorable evidence, one

of his rights under Wolff. We have some

difficulty, however, seeing the linkage.

The Board had the tape, so it knew

whatever evidence favorable to White the

tape contained. The district court, which

reviewed the tape, thought it highly

inculpatory; but even if it was

exculpatory it was before the Board. The

only evidence that White wanted to, but

could not, present was live testimony of

Yvonne Davis. But the reason why he could

not present her testimony--that she was

no longer an employee of the prison, and

the Board lacked compulsory process to

require civilians to appear before it--is

unrelated to his access to the tape. This

makes it difficult to see what is at

stake. White is understandably curious

about what the tape reflects, but the

prison is understandably skittish about

revealing an interview that likely

discussed prison-security measures about

which prisoners are best kept in the

dark.

As the district court held, the

administrative record contains "some

evidence" that White engaged in drug

trafficking. See Superintendent of

Walpole v. Hill, 472 U.S. 445, 454

(1985). The Board therefore was entitled

to take the actions it did, and the

petition for habeas corpus was properly

denied.

Affirmed

ROVNER, Circuit Judge, concurring in part

and dissenting in part. I agree with my

colleagues on the procedural points,

i.e., that this case is not moot and,

further, that 28 U.S.C. sec.2254(d) does

not apply to White’s habeas petition.

Ante sec.sec. 1, 2. I also agree that

White was not deprived of due process

when he was denied access to the

videotape of the interview with Yvonne

Davis. Ante sec. 4. I respectfully

disagree, however, with their conclusion

that Officer Thompson’s ex parte meeting

with the Conduct Adjustment Board (the

"CAB" or the "Board") immediately prior

to, and even during, the Board’s

deliberations did not deprive White of

due process. Ante sec. 3.

Due process entitles a prisoner faced

with the loss of good-time credits to

certain rudimentary procedural

protections. Wolff v. McDonnell, 418 U.S.

539, 555-58, 94 S. Ct. 2963, 2974-76

(1974). These include the right to

advance written notice of the charges

against him, so that he might know what

the charges are and "marshal the facts

and prepare a defense," id. at 564, 94 S.

Ct. at 2979, and the right (within

reasonable limits) to call witnesses and

present documentary evidence on his own

behalf, id. at 566-67, 94 S. Ct. at 2979-

80. A "sufficiently impartial"

decisionmaker is also necessary, in order

to shield the prisoner from the arbitrary

deprivation of his liberties. Id. at 570-

71, 94 S. Ct. at 2982; see also Gaither

v. Anderson, 236 F.3d 817, 820 (7th Cir.

2000) (per curiam); Merritt v. de los

Santos, 721 F.2d 598, 601 (7th Cir. 1983)

(per curiam); Redding v. Fairman, 717

F.2d 1105, 1112, 1116 (7th Cir. 1983),

cert. denied, 465 U.S. 1025, 104 S. Ct.

1282 (1984); United States ex rel. Miller

v. Twomey, 479 F.2d 701, 716, 718 (7th

Cir. 1973) (Stevens, J.), cert. denied,

414 U.S. 1146, 94 S. Ct. 900 (1974).

The fact that Thompson was allowed to

remain behind in the hearing room with

the members of the CAB after White’s

hearing had concluded was inconsistent

with each of these procedural rights. As

we have no record of what transpired

between Thompson and the Board, we must

presume, as my colleagues in fact do,

that Thompson and the members of the

Board engaged in an ex parte discussion

of the charges against White. Ante at

8./1 It is possible that during that

exchange, Thompson supplied the Board

with additional details about White’s

behavior, effectively expanding the

charges against White. If so, the

discussion deprived White of advance

notice of those charges. See Wolff, 418

U.S. at 564, 94 S. Ct. at 2978-79; Swank

v. Smart, 898 F.2d 1247, 1253 (7th Cir.

1990). Even if the charges were not

broadened, and Thompson simply repeated,

clarified, or amplified his previous

testimony, it would have been as if the

Board had reopened the hearing upon

White’s departure from the room and

continued it in absentia, without any

demonstrable basis, such as a security-

related concern (see Wolff, 418 U.S. at

565, 94 S. Ct. at 2979), for doing so. By

depriving White of the opportunity to

meet the case against him, that scenario

too would violate due process. See Wolff,

418 U.S. at 566-67, 94 S. Ct. at 2979-80;

Swank, 898 F.2d at 1253-54. Even if all

that Thompson did was take the

opportunity to make a final summation to

the Board, the exchange was nonetheless

unacceptable. When we hear oral

arguments, we do not ask the appellee and

his counsel to leave the courtroom at the

conclusion of his argument, so that the

appellant may make a final, rebuttal

argument to us in private; it would be no

less of an "extraordinary impropriety"

for a Conduct Adjustment Board the Board

to grant that privilege to an

investigating officer. Id. at 1254.

An ex parte proceeding always presents

the risk of an erroneous result, see

United States v. Michelle’s Lounge, 39

F.3d 684, 699 (7th Cir. 1994); and here

it also calls into question the

neutrality of the Board itself. Doubtless

it is true that the members of a Conduct

Adjustment Board, by virtue of their

positions within the penal system as well

as their day-to-day interaction with and

reliance upon correctional officers, are

more likely to credit and to empathize

with those who, like Thompson, document

and present charges against prisoners,

see ante at 11; Cleavinger v. Saxner, 474

U.S. 193, 204, 106 S. Ct. 496, 502

(1985); Cluchette v. Procunier, 497 F.2d

809, 820 (9th Cir. 1974), modified on

other grounds, 510 F.2d 613 (9th Cir.

1975), and rev’d on other grounds by

Baxter v. Palmigiano, 425 U.S. 308, 96 S.

Ct. 1551 (1976); and yet the Supreme

Court has never indicated that this

likelihood alone disqualifies prison

officials and staff members from serving

as members of the CAB. See Wolff, 418

U.S. at 570-71, 94 S. Ct. at 2982. But

there is a qualitative difference between

a decisionmaker’s familiarity with, and

possible predisposition to believe, a

witness, and an ex parte conversation

between the decisionmaker and the witness

about the merits of the case. Thompson

was not the FTC’s Chief Economist (see

ante at 9); he was White’s chief accuser.

His credibility was a material, if not

crucial, factor in the Board’s assessment

of the charges against White. My

colleagues concede that due process would

not have permitted Thompson to serve as a

voting member of the Board. Ante at 11;

see Whitford v. Boglino, 63 F.3d 527, 534

(7th Cir. 1995) (per curiam) cert.

denied, 529 U.S. 1075, 120 S.Ct. 1691

(2000); Malek v. Camp, 822 F.2d 812, 816

(8th Cir. 1987); de los Santos, 721 F.2d

at 601; Cluchette, 497 F.2d at 820; see

generally In re Murchison, 349 U.S. 133,

136, 75 S. Ct. 623, 625 (1955). Yet, at

a critical stage of the process, just

after the close of evidence and at the

beginning of the Board’s deliberations,

Thompson had the opportunity to argue the

case against White, to spin the facts, to

add details that had not emerged at the

hearing itself, to try to sway Board

members, and even to haggle with them as

they began to deliberate--all in the

absence of White, an advocate for White,

a record, or any other check to maintain

the balance between the accused and his

accuser that is essential to due process.

The ability to influence the Board’s

decision free of such restraints comes

disturbingly close to a vote on White’s

fate.

Although it is impossible for us to know

precisely what effect the ex parte

exchange between Thompson and the Board

had upon the Board’s decision, cf. Simer

v. Rios, 661 F.2d 655, 680-81 & n.54 (7th

Cir. 1981) (no prejudice shown), cert.

denied, 456 U.S. 917, 102 S.Ct. 1773

(1982), its effect on the fairness of the

process is self-evident. Secrecy itself

is inconsistent with the fundamental

tenets of due process. Home Box Office,

Inc. v. F.C.C., 567 F.2d 9, 56 (D.C.

Cir.) (per curiam), cert. denied, 434

U.S. 829, 98 S. Ct. 111 (1977), cited

with approval by Chicago, Milwaukee, St.

Paul & Pacific R.R. Co. v. United States,

585 F.2d 254, 263 (7th Cir. 1978); see

also Redding, 717 F.2d at 1112. In a real

sense, Thompson’s private audience with

the Board rendered all that had taken

place before then a sham, because White

cannot know what transpired in that

private exchange (let alone respond), and

because we ourselves, as a reviewing

body, are utterly in the dark as to the

substance of the exchange. See HBO, 567

F.2d at 54-55; cf. Simer, 661 F.2d at

680-81 (ex parte contacts between judge

and intervenors did not amount to due

process violation where contacts were

disclosed and plaintiffs were given

opportunity to respond)./2

Strikingly absent from either the record

or the State’s brief is any justification

for the secrecy. It is possible, as my

colleagues suggest, that the Board asked

Thompson to remain behind at the

conclusion of the hearing in order to ask

him questions about his confidential Case

Report. See ante at 10. But it is equally

possible, as my colleagues acknowledge,

that Thompson’s ex parte remarks to the

Board were not confined to subjects that

necessitated confidence. See ante at 10.

And notably, neither the State nor my

colleagues have cited a plausible

justification for Thompson’s presence

during the Board’s deliberations. Without

at least some record as to the nature of,

and need for, the ex parte discussion, we

are in no position to judge whether it

exceeded the bounds of propriety.

Throwing up our hands in the absence of

such a record (see ante at 10) does the

Constitution no service. We require

prison officials to assemble a record

containing "some evidence" supporting the

imposition of discipline. Superintendent

of Walpole v. Hill, 472 U.S. 445, 454,

105 S. Ct. 2768, 2773 (1985). When a

Conduct Adjustment Board decides to

question a witness ex parte, I see no

reason why it cannot in some manner

document the fact that it has done so and

why. See Wolff, 418 U.S. at 565, 94 S.

Ct. at 2979 (noting that when CAB

excludes evidence for security-related

reasons, it should note the exclusion);