by Lonnie Burton
On May 20, 2016, a Kentucky Court of Appeals, in a 2-1 decision, held that a prisoner has the right, upon request, to have video surveillance footage reviewed and considered by the hearing officer during a prison disciplinary proceeding. The ruling reversed a lower court’s order.
Kristy Lawless was attacked by another prisoner at the Kentucky Correctional Institution for Women in February 2014. During the ensuing fight, several guards came to separate the combatants. One of the guards, Jessica Evans, said she was kicked by Lawless while trying to break up the fight. Lawless was taken to segregation and charged with a disciplinary offense for “committing physical action resulting in injury to an employee.”
Lawless claimed she was only defending herself, was compliant when the guards intervened and did not kick anyone. She requested that the hearing officer review video footage of the incident to prove her side of the story. In addition, a sergeant submitted a statement that backed Lawless’ account of the altercation, saying Lawless defended herself when attacked, and when he and Evans were separating them she “complied with all directives.”
Nevertheless, Lawless was found guilty and sanctioned with 365 days in segregation and loss of 1,321 good time credits. In making her decision, the hearing officer only considered the statement by Evans and refused to review the video footage or consider the sergeant’s statement. Lawless’ appeal to the warden was denied and she filed what is known in Kentucky as a petition for declaration of rights in the Shelby County Circuit Court.
After Lawless filed her petition, the hearing officer submitted an affidavit stating she had viewed the video footage following the disciplinary hearing and that it contained nothing that would change the guilty finding or sanctions. Without asking for a response from Lawless, the circuit court then dismissed her petition two days later. Lawless appealed.
The Court of Appeals reversed, noting that under Kentucky case law a disciplinary hearing officer must, when requested by the prisoner, review security footage and consider its weight in making a finding of guilt or innocence. See: Ramirez v. Nietzel, 424 S.W.3d 911 (Ky. 2014). The appellate court also dismissed the prison’s contention that a post hoc review of the video was sufficient to satisfy due process.
“Where exculpatory evidence is offered by the inmate, the hearing officer must review the records and indicate in the written findings that he undertook the review and whether the records confirm or contradict” the prisoner’s version of events, the Court of Appeals wrote.
The Court also found that Lawless’ due process rights were violated when the hearing officer failed to either review the video during the hearing or provide a written explanation as to why she didn’t. Finally, the appellate court faulted prison officials for not making the video footage part of the record for judicial review.
Case law makes “it perfectly clear that the videotape surveillance footage must be made part of the record to be reviewed by the circuit court, even if under seal and reviewed in camera,” the Court stated. “It is a logical and necessary extension of Ramirez that the circuit court’s failure to review the surveillance footage is reversible error. We so hold.”
The case was remanded to the lower court with instructions to order prison officials to produce the video footage of the incident. If the video no longer exists, the circuit court was instructed to order that all of Lawless’ lost good time be restored and that she be released from disciplinary segregation.
The Kentucky Supreme Court granted discretionary review on April 27, 2017, and a final decision remains pending. See: Lawless v. Conover, 2016 Ky. App. Unpub. LEXIS 885 (Ky. Ct. App. 2016), review granted.
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Related legal case
Lawless v. Conover
|Cite||2016 Ky. App. Unpub. LEXIS 885 (Ky. Ct. App. 2016)|
|Level||State Court of Appeals|