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California Lifers’ New Litigation Tool: DA’s “Opinion” and Governor’s “Belief” Do Not Constitute “Evidence” in Parole Denial Cases
In the final chapter of the litigation saga of now-paroled PLN writer John Dannenberg, on April 22, 2009, the California Supreme Court declined review and approved publication of the state appellate court’s January 23, 2009 decision in In re Dannenberg, 173 Cal.App.4th 237 (Cal. App. 6th Dist. 2009) [PLN, March 2009, p.44]. That ruling had vacated Governor Arnold Schwarzenegger’s reversal of Dannenberg’s 2005 grant of parole by the Board of Parole Hearings, and ordered its reinstatement.
Of particular import to all California lifers litigating for their release, this newly published precedent makes an important point of law. The Court of Appeals rejected the Governor’s argument that had relied upon his own stated “feelings” that Dannenberg’s psychological reports were all wrong, and on the District Attorney’s stated “opinion” that Dannenberg didn’t have adequate “insight.” The Court held that “the District Attorney’s ‘opinion[,]’ like the Governor’s belief, is not evidence, and therefore does not constitute ‘some evidence’ supporting the Governor’s decision.”
Dannenberg had questioned the appellate court whether it was fair for the Board, the Governor or the District Attorney to have their opinions treated as “evidence” in the discretionary “weighing” process that is, in turn, at the heart of those same fact-finders’ lawful exercise of discretion in the parole process. In fact, Dannenberg argued that the “opinion” or “belief” of the Board, the Governor and the District Attorney does not rise to the level of “evidence.”
Rather, the Board and Governor’s use of their own opinions and feelings have routinely been tautologically bootstrapped as the basis to deny parole upon judicial review of those decisions. For example, since neither the Board commissioners, the Governor or the District Attorney are certified to render expert psychological opinions (such as the presence or absence of a prisoner’s “insight”), their reliance upon their own opinions as “evidence” in judicial reviews violated the state Supreme Court’s recent holding that the Governor [and the Board] “must” rely upon the professional opinions of the Board’s own psychological experts when making parole determinations. See: In re Lawrence, 190 P.3d 535, 44 Cal.4th 1181 (2008) [PLN, April 2009, p.30].
Dannenberg complained that blanket vague opinions such as “I feel that prisoner X does not appear to have full insight” or “I believe that prisoner X doesn’t show adequate remorse” have been permitted to stand as “some evidence” to support a court’s denial of habeas relief.
Now, due to the Court of Appeals’ published ruling, such conclusory statements – without more (i.e., palpable evidence in the record below) – do not rise to the level of “evidence.” Dannenberg had requested that the Supreme Court add this important finding to the body of existing case law “to properly inform future parole decisions and court reviews at all levels,” by approving publication of the appellate decision. The Supreme Court impliedly agreed. See: Dannenberg (John E.) on H.C., 207 P.3d 2, 93 Cal. Rptr. 3d 537 (Cal. 2009).
Of particular import to all California lifers litigating for their release, this newly published precedent makes an important point of law. The Court of Appeals rejected the Governor’s argument that had relied upon his own stated “feelings” that Dannenberg’s psychological reports were all wrong, and on the District Attorney’s stated “opinion” that Dannenberg didn’t have adequate “insight.” The Court held that “the District Attorney’s ‘opinion[,]’ like the Governor’s belief, is not evidence, and therefore does not constitute ‘some evidence’ supporting the Governor’s decision.”
Dannenberg had questioned the appellate court whether it was fair for the Board, the Governor or the District Attorney to have their opinions treated as “evidence” in the discretionary “weighing” process that is, in turn, at the heart of those same fact-finders’ lawful exercise of discretion in the parole process. In fact, Dannenberg argued that the “opinion” or “belief” of the Board, the Governor and the District Attorney does not rise to the level of “evidence.”
Rather, the Board and Governor’s use of their own opinions and feelings have routinely been tautologically bootstrapped as the basis to deny parole upon judicial review of those decisions. For example, since neither the Board commissioners, the Governor or the District Attorney are certified to render expert psychological opinions (such as the presence or absence of a prisoner’s “insight”), their reliance upon their own opinions as “evidence” in judicial reviews violated the state Supreme Court’s recent holding that the Governor [and the Board] “must” rely upon the professional opinions of the Board’s own psychological experts when making parole determinations. See: In re Lawrence, 190 P.3d 535, 44 Cal.4th 1181 (2008) [PLN, April 2009, p.30].
Dannenberg complained that blanket vague opinions such as “I feel that prisoner X does not appear to have full insight” or “I believe that prisoner X doesn’t show adequate remorse” have been permitted to stand as “some evidence” to support a court’s denial of habeas relief.
Now, due to the Court of Appeals’ published ruling, such conclusory statements – without more (i.e., palpable evidence in the record below) – do not rise to the level of “evidence.” Dannenberg had requested that the Supreme Court add this important finding to the body of existing case law “to properly inform future parole decisions and court reviews at all levels,” by approving publication of the appellate decision. The Supreme Court impliedly agreed. See: Dannenberg (John E.) on H.C., 207 P.3d 2, 93 Cal. Rptr. 3d 537 (Cal. 2009).
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Related legal case
Dannenberg (John E.) on H.C.
| Year | 2009 |
|---|---|
| Cite | 207 P.3d 2, 93 Cal. Rptr. 3d 537 (Cal. 2009). |
| Level | State Court of Appeals |
| Injunction Status | N/A |