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California Lifer Entitled to New Parole Hearing, but Not Limited to Just “New Evidence”

California Lifer Entitled to New Parole Hearing, but Not Limited to Just "New Evidence"

by Marvin Mentor

The California Court of Appeal, 6th District, agreed with the superior court below that a lifer who had been denied parole twice based upon being a "danger to society" was entitled to another Board of Parole Hearings (BPH) hearing focusing on whether he was currently such a danger. However, the appellate court rejected the superior court's additional restriction that the BPH only consider "new evidence" since the last denial of parole.

Bernard Weider, 69, had been convicted of 2nd degree murder plus two counts of assault with a firearm, and was sentenced to 15 years to life. His pre- and post-prison records were clean. Weider was denied parole in 2002, but upon petition to the Santa Clara County superior court, was granted writ relief in the form of an order for a new hearing. At the second hearing in 2005, he was again found unsuitable for parole. He went back to the superior court, which issued a new writ that ordered yet another hearing and restricted the BPH from denying parole unless such a denial was based upon "new evidence" since the 2005 hearing. The BPH appealed this restriction.

As is often the case, the BPH found Weider "unsuitable" for parole despite the fact that no evidence supported a finding of any of the Board?s regulatory factors for unsuitability. The denial was based upon findings that the crime was "carried out in a dispassionate and calculated manner," and that Weider had "downplayed" his prior alcohol dependency. The superior court minimized Weider's culpability by finding that the multiple victims were only accidentally injured. The court further reasoned that if Weider had served 25 years with credits, he had met the punishment for 1st degree murder, and therefore the question of whether his actions were "a modicum" more than minimally necessary to sustain his 2nd degree conviction was "so ridiculous that simply to state it is to refute it."

Upon review, the appellate court found there was no evidence to support a BPH requisite for "self-help" programs. Next, in weighing the gravity of the offense, the court found that the BPH did not consider mitigating evidence in the record. Most importantly, the appeals court recognized the "overarching consideration in the suitability determination is whether the inmate is currently a threat to public safety," citing In re Dannenberg, 34 Cal.4th 1061, 1071, 1083, 1085-¬86, 104 P.3d 783 (Cal. 2005), and In re Scott, 133 Cal.App.4th 573, 591, 34 Cal.Rptr.3d 905 (Cal.App. 1 Dist. 2005).

Accordingly, the appellate court affirmed the superior court's order for yet another BPH hearing, to consider Weider's current threat to public safety, but not restricted to just "new evidence" since the prior hearing. See: In re Weider, 145 Cal.App.4th 570, 52 Cal.Rptr.3d 147 (Cal.App. 6 Dist. 2006).

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Related legal case

In re Weider