Decision on Parolees’ Rights Splits 9th Circuit

(CN) - The 9th Circuit's decision not to rehear an order limiting the admission of hearsay evidence at parole revocation hearings drew a sharp dissent from six judges who said the procedures afford greater due-process protection to parolees, who have already been convicted, than to criminal defendants, who are presumed innocent.

"Under the majority decision of the panel, nontestimonial hearsay evidence, which would be admissible against a criminal defendant without any violation of the defendant's constitutional evidentiary rights, is inadmissible against a parolee in a parole revocation hearing unless the State can show 'good cause' to deny the parolee his right to confrontation as stated in United States v. Comito," Judge Carlos Bea wrote for the dissent (original emphasis).

"The Supreme Court has told us the Constitution's due process requirements for a proper parole revocation hearing are less than the requirements for a proper criminal trial," Bea wrote.

"This only makes sense," Bea wrote, because a "parolee has already been convicted. His freedom is a matter of grace; it is a privilege extended in an attempt to rehabilitate him. A criminal defendant, however, is presumed innocent; his freedom is a matter of right. His conviction would deprive him of his liberty."

The 9th Circuit voted not to reconsider, before an 11-judge panel, the smaller panel's May 2008 decision.

The panel had ruled 2-1 that parolees' right to confront their witness limited the admission of hearsay evidence at parole revocation hearings.

"The law of this circuit is clear: the Comito test remains central to the confrontation rights in parole hearings," Judge Michael Daly Hawkins wrote for the three-judge panel.

In his dissent from the decision not to rehear the case en banc, Bea said the panel's decision "affords greater due process protection as to evidence offered against parolees than as to evidence offered against criminal defendants" (original emphasis).

Judges Diarmuid O'Scannlain, Richard Tallman, Consuelo Callahan, Sandra Ikuta and N.R. Smith joined Bea in calling the panel's result "odd in theory and still more odd in practice."

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