Corrections agency did not violate inmate’s due process rights in prison riot case 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Dec. 21, 2010 – The Wisconsin Supreme Court says that Darnell Jackson must stay in prison for six extra months based on an agency decision that he incited a riot at the New Lisbon Correctional Institution in November 2004.

After several security guards were attacked by three inmates at the correctional facility, an adjustment committee conducted an investigation. A conduct report cited Jackson for inciting a riot based on the statements of two informants, who said Jackson was a known gang leader and was seen speaking with the three inmates moments before they assaulted the guards.

Upon a disciplinary hearing, the adjustment committee found Jackson guilty and increased his original sentence by 179 days. The committee cited confidential witness statements, other testimony, and a “video” tape as evidence for its decision.

Under relevant procedures, Jackson filed a complaint with the institutional examiner, but the examiner dismissed Jackson’s complaints. The Secretary of the Department of Corrections upheld the examiner’s decision.

Jackson filed a petition for circuit court review, triggering the respondents’ obligation to transmit the record to the circuit court. But before transmitting the record, the prison warden instructed the committee to remove reference to a “video” as evidence for its decision.

Jackson argued that the video footage of the incident would have shown he did not converse with or signal participants before the riot. The respondent’s argued that the video was not relied on to convict Jackson but was erroneously identified as a factor in the report.

The circuit court ruled that the evidence was sufficient to convict Jackson without the video, based on the confidential informants’ statements. The appeals court agreed.

The case went to the supreme court, which voiced concern about the state of the record and remanded the case to “receive the video in question and perform in camera review to determine whether it is exculpatory and material.” After in camera review, the circuit court concluded the video was neither material nor exculpatory.

The case went back to the supreme court to decide whether the correctional agency’s disciplinary procedures satisfied due process. In Jackson v. Buchler, 2010 WI 135 (Dec. 14, 2010), the majority ruled that the adjustment committee did not violate Jackson’s due process rights.

Fundamental fairness 

The supreme court – in an opinion written by Justice Ann Walsh Bradley – examined whether the procedures employed by the committee were fundamentally fair. In light of the video evidence, Jackson argued the evidence was insufficient to find him guilty of inciting a riot.

But the supreme court, which viewed portions of the video footage, disagreed that the video undermined the testimony of the informants.

The video panned across the scene in front of the prison barbershop where Jackson was working around the time of the riot. But the supreme court could not find conclusive evidence to contradicted the informants’ statements about Jackson’s involvement.

“With or without the video evidence, reasonable minds could arrive at the same conclusion reached by the adjustment committee,” Justice Bradley wrote. “Accordingly, we conclude that the evidence of Jackson’s guilt was sufficient to satisfy due process.”

In addition, the majority concluded that failing to provide the video footage to Jackson did not infringe on his due process right to a fundamentally fair hearing.

In her dissent, Chief Justice Shirley Abrahamson argued that “sufficiency of the evidence is not the proper analysis when the focus or touchstone of the court’s inquiry … is whether Jackson got a due process hearing before the Adjustment Committee.”

Chief Justice Abrahamson asserted that the record before the court was not the record of evidence upon which the adjustment committee relied. That violated Jackson’s due process rights, according to Abrahamson, and Jackson is entitled to a new hearing.

Substantial involvement 

Jackson also argued that his due process rights were violated because a member of the adjustment committee had “substantial involvement” in the incident. The adjustment committee member interviewed Jackson after the riot and allegedly asked Jackson to waive his due process rights.

Wis. Admin. Code DOC section 303.82(2) prevents a person who has substantial involvement in an incident, which is the subject of a hearing, from serving on a committee for that hearing.

The circuit court concluded that substantial involvement refers to involvement in the incident, not an investigation of the incident, and the adjustment committee member was not involved in the incident, only the investigation.

The supreme court did not rule on whether substantial involvement refers to involvement in the incident only, or whether that includes involvement in the investigation process. The court concluded that whatever involvement there was, it was not substantial based on the record.

“Under either interpretation, the question is whether the committee member’s involvement was ‘substantial,’” Justice Bradley wrote. “Based on this sparse record, we cannot conclude as a matter of law that the [committee member’s] involvement in the incident was ‘substantial.’”

Chief Justice Abrahamson disagreed, arguing that even on the basis of a limited record, “the aura and aroma of substantial involvement in the investigation are present and raise due process concerns. …”

Attorneys 

Thomas Shriner, G. Michael Halfenger, and Katherine Spitz of Foley & Lardner LLP, Milwaukee, represented Darnell Jackson. Assistant Attorney General Abigail C.S. Potts represented the state.