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No Oregon DNA Appeal Unless Testing is Denied or Limited

The Oregon Court of Appeals held that prisoners do not have a due process right to a psychological evaluation at state expense for "rehabilitation hearings."

Oregon prisoners convicted of Aggravated Murder are sentenced to life imprisonment with a 30 year minimum sentence. That is effectively a life without parole sentence, until the Board of Parole and Post-Prison Supervision (Board) finds that the prisoner satisfies his burden of proving that he is likely to be rehabilitated within a reasonable period of time. This is done at a rehabilitation (aka "murder review") hearing, which occurs 15, 20, 25, or 30 years after conviction, depending on when the prisoner committed his offense.

If the prisoner proves the likelihood of rehabilitation by a preponderance of the evidence, the Board must make the prisoner immediately eligible for release. See (PLN Apr 2012, p. 32). Prisoners have a protected liberty interest in such parole eligibility. See: Miller v. Oregon Board of Parole, 642 F3d 711 (9th Cir. 2011)(PLN Oct 2011, p. 26).

The Board has adopted "criteria indicating whether the inmate is likely to be rehabilitated prior to release," which include a requirement that the prisoner prove that he "does not have a mental or emotional disturbance, deficiency, condition or disorder predisposing (him) to the commission of a crime to a degree rendering (him) a danger to the health and safety of the community." OAR 255-032-0020(8).

Despite putting the prisoner's mental state at issue, the Board does not order a psychological evaluation by a Board-contract psychologist or provide funds for an independent evaluation. As such, indigent prisoners never have the ability to meet their burden of proving that they do not suffer from such a mental or emotion condition.

Oregon prisoner Paul Maney was convicted of Aggravated Murder in 1980 and first eligible for a rehabilitation hearing in the late 1990s. He offered an independent psychological evaluation at a 1997 hearing, but the Board found that he was not capable or rehabilitation.

The Board held subsequent hearings in 2002 and 2007. Maney did not offer independent psychological evaluations at those hearings, however, because he could not afford to do so. The Board again found that Maney was not capable of rehabilitation after those hearings.

The Board held another rehabilitation hearing for Maney in 2010. The prehearing notice again informed Maney that he had the burden of proving the likelihood of rehabilitation, and noted his requirement to prove that he does not suffer from a mental or emotional disorder.

Before the hearing, Maney asked the board to order a psychological evaluation so he could demonstrate that his mental state had improved. The Board denied his request, noting "that no law required it to 'create evidence' for Maney and that he bears the burden of proof. The Board also included 1981 and 1997 psychological evaluation reports in the record of materials it would consider at the 2010 hearing.

During the hearing, Maney's attorney objected again to the denial of a psychological evaluation to assist Maney in demonstrating that his mental state had improved. After the hearing, the Board found, on the basis of the 1981 and 1997 psychological evaluation reports, that Maney "continued to suffer from an emotional disturbance that made him a danger to the community" in 2010. It unanimously found "after applying the OAR 255-032-0020 factors," that Maney was not capable of rehabilitation.

The Board also reaffirmed its earlier decision refusing to provide Maney with a current psychological evaluation. The Board noted counsel's objection, repeating that Maney "has the burden of proof, and no contested case procedures require that an agency create evidence."

Maney appealed the Board's decision, arguing that "without a current psychological evaluation, the risk of an erroneous determination that a prisoner is not likely to be rehabilitated within a reasonable period of time is great, because the board has effectively denied the indigent inmate a meaningful opportunity to prove critical components of that determination and to make an evidentiary record."

The Oregon Court of Appeals disagreed. While Maney's application of the Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976) "factors to the circumstances of his case is well-reasoned," the Court concluded that controlling post-Matthews precedent — Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100 (1979) and Swarthout v. Cooke, 562 U.S. 216, 131 S.Ct. 859 (2011) — defeat his argument.

"In the end, what matters for the Greenholtz/Cooke analysis is the process that petitioner received in conjunction with his murder review hearing, not what additional procedures might have benefited either him or the board in making its determination," the Court explained. "Petitioner received notice of his 2010 . . . hearing, pre-hearing access to his records, the right to present evidence in his favor and to make a statement to the board, and a complete explanation of why the board declined to declare him eligible for parole. . . . Those procedures satisfied the requirements of the Due Process Clause." See: Maney v. Board of Parole, 272 Or App 116, P3d (2015).

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Related legal case

Maney v. Board of Parole