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Prison Discipline: Certiorari Review – Right to Exculpatory Material – Impartial Fact-Finder

Darnell Jackson v. Buchler, 2010 WI 135, affirming unpublished court of appeals decision; for Jackson: Michael Halfenger, et al.; Jackson BiC; Buchler Resp.; Reply; Jackson Br. after remand; Buchler Br. after remand

Certiorari Review – Prison Discipline

Evidence before disciplinary committee, in the form of statements of two confidential informants, adequately established (“more likely than not”) that Jackson participated in a prison riot, ¶¶55-68.

Little purpose would be served by recounting the evidence in support of culpability. Most likely, the court didn’t grant review merely to decide the (precedentially) mundane question of whether this particular litigant, and none other, suffered harm under what by definition is a discrete, non-recurrent set of facts. See, e.g., State v. McConnohie, 113 Wis. 2d 362, 369, 334 N.W.2d 903 (1983) (“While the lack of justice or an erroneous result may trigger a review in this court, it is the general position of this court, pursuant to the standards adopted for reviewing cases (sec. 809.62, Stats.) that this court will not ordinarily review discretionary determinations by the court of appeals where that determination has not, arguably at least, been based on an error of law.”). Best guess: the court was interested in a knotty procedural problem – whether the discipline committee could mete out punishment on express reliance of a videotape of the incident, only to have the warden on administrative appeal strike that reliance but still affirm the result – but that problem evaporated when the court ordered the record supplemented with the videotape. Having the video available for its own review, the court could review the underlying merits (sufficiency of the evidence) and ignore the now-resolved procedural problem. The dissent, it should be mentioned, persuasively argues that the procedural problems remain, because it isn’t known what videos the disciplinary committee reviewed; supplementing the appellate record with something the administrative body may not have relied on doesn’t resolve the problem.

Note that prison discipline litigation is beyond the appointment authority of the public defender (another reason to tread lightly in this summary), but you may want to keep current with relevant caselaw. As might be imagined, this decision contains an overview of operative principles; they won’t be recited here.

Prison Discipline – Right to Exculpatory Material

The court determines that non-disclosed, assertedly exculpatory material was in fact “inconclusive,” and the court therefore declines to reach the question of whether the government is obligated to provide exculpatory evidence in the context of a prison disciplinary proceeding, ¶71.

As the court notes, ¶70 n. 26, the Seventh Circuit has resolved the question in favor of “a qualified right to” such disclosure, Piggie v. McBride, 277 F. 3d 922, 925 (7th Cir. 2002) (“prisoners are entitled to have exculpatory evidence disclosed unless its disclosure would unduly threaten institutional concerns”). The court adds that it isn’t bound by the 7th’s pronouncements of constitutional law, id. n. 26.

Prison Discipline – Impartial Fact-Finder

Inmates are entitled to an impartial disciplinary committee as a matter of due process. This right is codified by Admin Code Doc § 303.82(2), which bars from participation on a disciplinary committee anyone “who has substantial involvement in an incident” before the committee. Jackson’s claim that someone serving on his committee indeed had “substantial involvement” is defeated by a “sparse record” on the issue, which prevents the court from concluding “as a matter of law” that the person’s involvement was “substantial,” ¶¶73-82.

And so the appeal – which enjoyed multiple rounds of briefs and oral arguments, sandwiched around a remand for further trial-level proceedings – concludes with a whimper not a bang. “The mountains will be in labor, and a ridiculous mouse will be brought forth.”

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