# Phillip Bruce Christopher v. U. S. Board of Parole

> Court of Appeals for the Seventh Circuit · December 29, 1978 · 589 F.2d 924

URL: https://www.frixlaw.com/law-library/cases/9465366

## Case

- **Full name:** Phillip Bruce CHRISTOPHER, Petitioner-Appellant, v. U. S. BOARD OF PAROLE Et Al., Respondents-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** December 29, 1978
- **Citations:** 589 F.2d 924; 1978 U.S. App. LEXIS 6686
- **Precedential status:** Published
- **Opinion:** Dissent by Swygert
- **Judges:** Fairchild, Pell, Swygert
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

SWYGERT, Circuit Judge,
dissenting.
Although I agree with the majority on all other points, I cannot concur with their *933 determination that the process due Christopher at the rescission hearing did not include the right to confront and cross-examine adverse witnesses. Although the majority has purported to balance the factors outlined in Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976), they have failed to do so upon a scale sufficiently sensitive to the significance of the interests involved.
The private interest affected by the official action here is substantial. Christopher has an interest both in continued conditional release and in obtaining parole status. A rescission proceeding (like a proceeding revoking parole) determines whether Christopher will be free or in prison, “a matter of obvious great moment to him.” Wolff v. McDonnell, 418 U.S. 539, 560 , 94 S.Ct. 2963, 2977 , 41 L.Ed.2d 935 (1974). Furthermore, rescission of his parole grant retards his parole eligibility from twenty days to over two years. Clearly the loss entailed by a rescission is grievous. Because of its severity, it is essential to Christopher that the decision to rescind is not based on inaccurate information or an erroneous evaluation.
The Government’s interest in the rescission of the parole grant is also substantial. As with a parolee, the Government has an interest in being able to return Christopher to incarceration without the burden of an adversary trial if he has failed to abide by the rules of his pre-parole release program. Furthermore, because Christopher’s parole grant had not yet been formally executed, the Government has an additional interest in rescinding its initial decision if its allowance was based on false premises. But the Government also has an interest in the accuracy of rescission determinations. Society suffers when a prisoner is released on parole before he is fully rehabilitated. It equally suffers, however, when he is kept in prison beyond the time when all purposes of incarceration have been served.
Christopher was charged with two separate grounds for rescinding his parole grant: (1) that he violated the rules of the pre-release program by reassociating with individuals with criminal records, and (2) that there was “new” information that he had been engaged in other criminal activity before his conviction in 1972. 1 Rescission of Christopher’s parole grant was grounded only on the second charge, a significant point which may not be readily apparent from the majority’s recitation of the facts. Primary support for this charge was an unverified written statement by Charles Broeckel wherein he implicated Christopher in a robbery and a number of burglaries. Christopher denied his involvement.
The probative value of requiring confrontation and cross-examination in these circumstances is obvious. Confrontation and cross-examination guarantee that the fact finding process is as complete and reliable as possible. As Mr. Chief Justice Burger has noted: “[cjross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 , 94 S.Ct. 1105, 1110 , 39 L.Ed.2d 347 (1974). The Supreme Court in other cases has recognized that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 , 90 S.Ct. 1011 , 25 L.Ed.2d 287 (1970). In Greene v. McElroy, 360 U.S. 474, 496-97 , 79 S.Ct. 1400, 1413 , 3 L.Ed.2d 1377 (1959), the Court expounded the right of confrontation in the strongest of terms:
Certain principles have remained relatively-immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. *934 While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right “to be confronted with the witnesses against him.” This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases . . . but also in all types of cases where administrative and regulatory actions were under scrutiny. (Citations omitted).
Therefore, before a parole grant may be rescinded, a convict has the right to confront and cross-examine adverse witnesses at the hearing if disputed factual issues are involved. 2 That right, however, is not unqualified. The Board may modify or even deny the right completely if it determines that good cause exists. See Morrissey v. Brewer, 408 U.S. 471, 487, 489 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972) 3 . But in such circumstances, the Board must justify the denial by reasons apparent in the record. 4
It may be noted parenthetically that this case is not like Baxter v. Palmigiano, 425 U.S. 308 , 96 S.Ct. 1551 , 47 L.Ed.2d 810 (1976), where the right to confrontation and cross-examination was rejected in the context of prison disciplinary proceedings. In that case the state had an interest not present here: potential hazards to institutional security, that is, safety of prison personnel and possible reprisal against other inmates, which could develop if inmates were allowed to confront adverse witnesses. 425 U.S. at 320-22 , 96 S.Ct. 1551 ; see Wolff, supra, 418 U.S. at 567-69 , 94 S.Ct. 2963 . Here, Christopher seeks to confront only witnesses who reside and work outside the prison. Thus the Court’s concern of avoiding “havoc inside the prison walls” is apparently not present in this case.
The majority recognizes this distinction but does not appreciate its significance. Instead, they simply state in a conclusory fashion that the rights of confrontation and cross-examination would unduly add to the governmental burden. By failing to require the Board to justify its denial by reasons apparent in the record, the majority has failed to require assurances that the countervailing factors present in Wolff and Baxter are in fact present here. Such a failure indicates an unwillingness to undertake more than a gross balancing of competing interests, thus ignoring the more finely-tuned, case-by-case balancing’ that *935 Mathews requires 5 and that the fundamental nature of the rights involved deserves.
Parole grant rescission hearings, no less than parole revocation proceedings, involved factual determinations. Because the respective interests of both the petitioner and the Government are substantial, due process requires that the risk of an erroneous determination be reduced as much as possible. Here the Board in rescinding the parole grant rejected Christopher’s request for confrontation and cross-examination without giving reasons. What reasons, if any, the Board had for that rejection is a matter of utmost importance if the requirements of procedural due process are to be observed. Accordingly, the case should be remanded to the district court for a determination of whether the Board’s decision denying confrontation and cross-examination was a proper exercise of its discretion.
I would reverse.
. None of this information was new in the sense that it occurred after Christopher had been awarded his parole date. Rather, the Government claims that it was new because the information was allegedly not known by the Parole Board at the time of the grant. See note 7 of the majority opinion, supra.
. The right to confront and cross-examine adverse witnesses does not preclude the use of conventional substitutes for live testimony. Rather, the right means only that there must be an adequate opportunity to rebut the evidence by facing the Government’s witnesses. Thus, prison officials or the Parole Board may use written reports to support their charges against an accused inmate, provided that the inmate is given a meaningful opportunity to call the authors of the reports as witnesses and subject them to cross-examination. See Richardson v. Perales, 402 U.S. 389, 407 , 91 S.Ct. 1420 , 28 L.Ed.2d 842 (1971).
. The observation made by Judge Wood in Hayes v. Walker, 555 F.2d 625, 630 (7th Cir.), cert. denied, 434 U.S. 959 , 98 S.Ct. 491 , 54 L.Ed.2d 320 (1977), is apposite:
This court recognizes the need for broad discretion in prison officials in their determination as to whether a prisoner should be . allowed to call witnesses or present affidavits. By requiring that the underlying support for the denial of particular witnesses be reflected in the record of the prison proceedings, we do not mean to unduly interject the court into this aspect of prison decision making. On the contrary, courts should exercise only a limited review of the exercise of prison officials’ discretion to ensure that arbitrary decision making is not undertaken.
. This does not require that a statement of reasons be given to support the denial of a request to confront and cross-examine adverse witnesses. The requirement would only be that some support for the denial of a request appear in the record. This will enable a court to make a limited inquiry into whether the broad discretion of prison officials has been exercised arbitrarily.
. In Mathews , the Court called it a “truism” that:
“ ‘[d]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 [ 81 S.Ct. 1743 , 6 L.Ed.2d 1230 ] (1961). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 [ 92 S.Ct. 2593 , 33 L.Ed.2d 484 ] (1972).
424 U.S. at 334 , 96 S.Ct. at 902.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9465366. Public record. Not legal advice.