# Phil White v. Indiana Parole Board

> Court of Appeals for the Seventh Circuit · October 23, 2001 · 266 F.3d 759

URL: https://www.frixlaw.com/law-library/cases/9494394

## Case

- **Full name:** Phil WHITE, Petitioner-Appellant, v. INDIANA PAROLE BOARD, Respondent-Appellee
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** October 23, 2001
- **Citations:** 266 F.3d 759; 2001 WL 1158918
- **Precedential status:** Published
- **Opinion:** Concurring in part by Royner
- **Judges:** Royner, Coffey, Easterbrook, Rovner
- **Cited by:** 239 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494394

## How later opinions describe it (automated extraction)

- explaining that restoration of good time credits could lead to an earlier end to parole
- holding that a Court must "not to add to the procedures required by Wolff, which . . . represents a balance of interests that should not be further adjusted in favor of prisoners."
- stating that there is no denial of opportunity to review and present evidence where CAB reviewed the evidence in question as part of case file
- stating that CAB “lacked the compulsory process to require civilians to appear before it”

## Opinion text

ILANA DIAMOND ROYNER,
Circuit Judge, concurring in part and dissenting in part.
I agree with my colleagues on the procedural points, ie., that this case is not moot and, further, that 28 U.S.C. § 2254 (d) does not apply to White’s habeas petition. Ante §§ 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 § 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 § 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 , 41 L.Ed.2d 935 (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. *769 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 , 79 L.Ed.2d 685 (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 , 39 L.Ed.2d 102 (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 766. 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 766-67; Cleavinger v. Saxner, 474 U.S. 193, 204 , 106 S.Ct. 496, 502 , 88 L.Ed.2d 507 (1985); Clutchette 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 , 47 L.Ed.2d 810 *770 (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 766); 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 767; see Whitford v. Boglino, 63 F.3d 527, 534 (7th Cir.1995) (per curiam) cert. denied, 529 U.S. 1075 , 120 S.Ct. 1691 , 146 L.Ed.2d 497 (2000); Malek v. Camp, 822 F.2d 812, 816 (8th Cir.1987); De Los Santos, 721 F.2d at 601 ; Clutchette, 497 F.2d at 820 ; see generally In re Murchison, 349 U.S. 133, 136 , 75 S.Ct. 623, 625 , 99 L.Ed. 942 (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 , 72 L.Ed.2d 177 (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 , 54 L.Ed.2d 89 (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
*771 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 767. 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 767. 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 767) 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 , 86 L.Ed.2d 356 (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); see also Ponte v. Real, 471 U.S. 491, 496-97 , 105 S.Ct. 2192, 2195-96 , 85 L.Ed.2d 553 (1985) (due process requires prison officials at some point to disclose reasons for refusal to call witnesses requested by inmate at disciplinary hearing). Furthermore, to the extent the Board relies on the information disclosed in the ex parte exchange, the record also ought to tell us something about the substance of that exchange. Cf Whitford, 63 F.3d at 535-36 (CAB that relies on testimony of confidential informant must in some way document reliability of informant). Otherwise, the procedural safeguards embraced by Wolff , and for that matter Hill’s demand for “some evidence” supporting the discipline, are illusory — the Board may go through the motions of hearing, but ultimately may resolve the case based on non-record “evidence” to which only the Board and the prisoner’s chief accuser are privy. That is the antithesis of due process.
With respect, I therefore dissent in part from the court’s holding today.
. It bears mention that at no level of administrative review did anyone in the prison hierarchy, including Thompson himself, deny that Thompson remained in the hearing room with the Board after the hearing had concluded. Only at the final level of administrative review was this issue even acknowledged. At that juncture, an administrative assistant with the Indiana Department of Corrections wrote that "Officer Thompson, while present at the hearing, was not involved in the decision of your guilt or innocence.” A.29. The record does not disclose, however, what the basis for that conclusion was. Moreover, even that ruling did not purport to reject White's contention that the Board and Thompson met privately after the hearing, just prior to and even during the Board’s deliberations.
. Adding insult to injury, the first person within the prison hierarchy to review White’s grievance regarding the ex parte contact between Thompson and the Board was none other than Thompson himself. See A.23. Thompson did not deny White’s allegation on the grievance form that Thompson was "present during the deliberation of the decision of guilt or innocent [sic],” A.23, but simply wrote in response that as the investigating officer he had a right to attend and participate in the hearing and that "all I’m doing is my job, that was placed before me.” A.23-24. Of course, "no man can be a judge in his own case.” Murchison, 349 U.S. at 136 , 75 S.Ct. at 625 . As White's accuser, and as a participant in the ex parte exchange with the Board, Thompson was ill-situated to review the propriety of the exchange. His role in the resolution of White's grievance rendered the *771 initial level of administrative review meaningless.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494394. Public record. Not legal advice.