The Oregon Court of Appeals rejected a facial challenge to a rule denying prisoners the right to call or cross-examine witnesses at parole hearings.

When the Oregon Board of Parole and Post-Prison Supervision (Board) has established a prisoner's parole release date, he must be released on that date, unless the Board finds under ORS 144.125, that the prisoner suffers from a "present severe emotional disturbance that renders the prisoner a danger to the health or safety of the community." If the Board makes that finding, it postpones the prisoner's release a minimum of two years and a maximum of ten years.

The Board bears the burden of proving the postponement issue. To obtain the evidence necessary to justify postponement, the Board compels all prisoners to submit to psychological evaluations by Board-contract psychologists. If a prisoner refuses to participate in an ordered evaluation, the Board may postpone release for ten years, OAR 255-062-0016(13), or until the "good time date," OAR 255-050-0013, which is usually much more than 10 years in the future.

The Board then holds a hearing to affirm or postpone release on the basis of the unworn, hearsay psychological evaluation reports of its contract-psychologists. Those reports are based upon, and cite to, other hearsay reports, including previous reports of other Board-contract psychologists, presentence investigation reports, police reports, and prison records. As we've previously reported, those reports also may contain significant errors. See: Dam v. Board of Parole, 258 Or App 39 (2013) (PLN, Aug 2014, p. 32). Additionally, a longtime Board-contract psychologist was recently fired after he was caught lying, a second time.

The Board refuses to call its contract-psychologists as witnesses, "because this is a hearing, not a trial," declared a former Board Chairman. The Board also metaphorically, but quite literally, ties the prisoner's hands behind his back and blindfolds him during the hearing, to prevent him from rebutting the report in any meaningful way.

"You may not call witnesses or cross-examine anyone who provided information to the Board," the Board's rules declare. Federal courts have repeatedly found that such blanket proscriptions on the right to call witnesses violate due process in the prison disciplinary context. See, e.g., Bartholomew v. Watson, 665 F2d 915, 918 (9th Cir. 1982). One would assume that Oregon prisoners are entitled to at least as much due process protection as they are entitled in prison disciplinary context, since the Oregon Supreme Court has held they have a greater protected liberty interest in release than the interest implicated by prison disciplinary proceedings. See: Stogsdill v. Board of Parole, 342 Or 332 (2007). Yet, one would be very wrong to make such an assumption.

During the hearing, the Board reads the most damning aspects of the doctor's report into the record and asks the prisoner for comment. Yet, the United States Supreme Court has repeatedly recognized that psychiatric reports and testimony are expressed in language that is relatively incomprehensible to laymen, generally, and mentally ill, illiterate and uneducated prisoners, specifically. See: Vitek v. Jones, 445 U.S. 480 (1980).

Without the right to confront and cross-examine the Board-contract psychologists who authored the reports upon which release is postponed, or to call expert or lay witnesses of their own, prisoners have a "protected liberty interest" in name only.

Oregon prisoner Pepe Rivas brought a facial challenge to the Board's blanket witness and cross-examination ban, arguing that it violates due process because "it denies the prisoner a `meaningful opportunity to be heard' by refusing to afford "an opportunity to call witnesses or cross-examine people who have provided information to the board, particularly any . . . psychologists who have furnished a report to the board."

Acknowledging that prisoners have a protected liberty interest in release, the Oregon Court of Appeals focused exclusively on the second due process prong — what process is due? — in rejecting the challenge.

The Court agreed with the Board that Rivas's due process challenge was foreclosed by the United States Supreme Court's holdings in Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 (1979) and Swarthout v. Cooke, 562 U.S. 216 (2011). Specifically, the court found that those decisions hold that "in the circumstance of a parole-release hearing, the process to which a prisoner is entitled is minimal and does not require permitting a prisoner to call witnesses or cross-examine people who have furnished information to the board."

In reality, Greenholtz expressly noted that questions about whether prisoners have a due process right to call or cross-examine witnesses was "not before (the Court) and (it) express(ed) no opinion on them." See: Greenholtz, 442 U.S. at 16, n. 8. Likewise, Cooke dealt only with the sufficiency of the evidence supporting the California Board's decision, and had nothing to do with calling or cross-examining witnesses. At least one federal court has recognized that neither Greenholtz nor Cooke discussed the Court's holdings "elsewhere that a constitutional hearing is a 'meaningful hearing.'" See: Gilman v. Brown, 2012 U.S.Dist.LEXIS 75728 (ED Cal 2012).

The Oregon court also failed to recognize that Greenholtz and Cooke were inapplicable because both cases involved parole hearings held before the Boards had granted a release date. While not at issue in either Greenholtz or Cooke, in both states, once the Boards established release dates, prisoners were entitled to present witness testimony at rescission or postponement hearings. See Greenholtz, 442 U.S. at 5; and McQuillion v. Duncan, 306 F3d 895, 900 (9th Cir. 2002).

The court also rejected Rivas's argument that under Stogsdill, "Oregon prisoners are entitled to the same protections discussed in" Wolff v. McDonnell, 418 U.S. 539 (1974), "which included the right to call witnesses." The court incorrectly concluded "that the Oregon Supreme Court has not recognized a more significant liberty interest . . . than the United States Supreme Court has identified from the state statutes at issue in Greenholtz and Cooke."

"Based on Greenholtz and Cooke," the Court concluded "that the ability to call witnesses or cross-examine people who have provided information to the board are not requirements for a constitutionally adequate parole-exit interview under ORS 144.125(3)." See: Rivas v. Board of Parole, 272 Or App 248  (2015).

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