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California Lifers Housed Out-Of-State in Federal Witness Protection Program Entitled to Appear in Person at Parole Hearings

by John E. Dannenberg

The California Court of Appeal (Third District) held that California prisoners sentenced to life with the possibility of parole, who are housed in out-of-state facilities in the federal witness protection program, are entitled to appear personally at their parole hearings. To the extent that parole board regulations conflict with controlling state statutes, the regulations were disapproved as void.

J.G. is a California prisoner incarcerated out-of-state in the federal witness protection program. Although convicted in California of seven murders, three counts of conspiracy to commit murder and numerous other violent felonies, he is eligible for parole. His prison record indicated considerable rehabilitation, and he wanted to demonstrate that record, plus his aged condition, to the Board of Parole Hearings (BPH) by his personal attendance at his parole hearing. However, although J.G. was afforded a telephonic appearance he was not allowed to attend the hearing.

In denying his request to attend, the BPH cited regulations 15 CCR §§ 2367(d)(1) and (d)(2), which limit physical attendance for “multi jurisdiction prisoners,” a general category of interstate transfers that J.G. argued did not apply to him. Rather, he relied on the federal witness protection program statute that had taken him out-of-state, California Penal Code § 2911, which expressly provides that parole hearings for such prisoners “will be conducted on the same basis as if [the prisoner] were in a California institution.” The relevant “same basis” is announced in BPH regulation § 2247, which provides, inter alia, that “[a] prisoner has the right to be present at the hearing.”

At first the BPH argued that § 2367(d) controlled. Then they waffled, and agreed to drop the matter and give J.G. a hearing in accordance with controlling regulations. A suspicious Court of Appeal didn’t trust the BPH’s offer, noting that “a ‘unilateral decision’ to change ‘is also unilaterally rescindable.’” The Court also rejected the BPH’s mootness claim, noting that there were approximately 20 California prisoners similarly situated to J.G. for whom the issue was “capable of repetition yet evading review.” The appellate court thus proceeded to resolve the question of law.

The Court first determined that California life prisoners have a limited liberty interest in being free from arbitrary parole decisions. Next, the appellate court searched the record for regulatory intent but found no evidence that the BPH had ever considered the witness protection statute when promulgating regulations §§ 2367(d)(1) and (d)(2). Therefore, as to the right to appear in person, the Court held that the conflict between the witness protection statute and the BPH regulations must be resolved in favor of the statute. The conflicting regulations were therefore declared void.

In granting J.G.’s petition, the Court of Appeal ordered the BPH to allow him to appear personally at his parole hearings by having BPH officials travel to the federal institution where he is confined, by arranging with “corresponding federal officials to meet with [him] and carry out the Board’s term-fixing and parole functions,” or by “otherwise designating a time and place in California where [he] may be produced by federal authorities to meet with the Board for his parole hearing.”

This ruling applies to all out-of-state witness protection program California life prisoners. J.G. was represented by Bolinas, California attorney Michael Satris, under appointment by the court. See: In re J.G., 159 Cal. App. 4th 1056 (Cal. App. 3d Dist. 2008).

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Related legal case

In re J.G.