Before Judges Wallace, Jr., Cuff and Lesemann.
The opinion of the court was delivered by: Lesemann, J.A.D.
Submitted December 14, 1999 - Decided June 5, 2000
On appeal from the Department of Corrections.
This appeal implicates due process guarantees as they apply to a prison disciplinary action which involved substantial adverse consequences to the inmate involved--fifteen days detention, 365 days administrative segregation and 365 days loss of commutation time.
While it is clear that the full panoply of Fourteenth Amendment due process guarantees do not apply to a prison disciplinary proceeding as they would to a non-prison criminal proceeding, such rights are abridged only "to the extent necessary to accommodate the institutional needs and objectives of prisons." McDonald v. Pinchak, 139 N.J. 188, 194 (1995). Under decisions of both the United States Supreme Court, see Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and the even broader protections provided by the New Jersey Supreme Court, see McDonald v. Pinchak, supra; Avant v. Clifford, 67 N.J. 496 (1975), prison inmates remain entitled to certain basic due process protections. Unfortunately, the procedures followed here curtailed defendant's right to a fair hearing far beyond any restriction required by his prison environment and obviated one of the most basic aspects of any system of due process and fair treatment: a clear statement of the offense with which the accused is charged. Not only did the Department of Corrections (the Department) fail to provide a clear statement of the charge against appellant Daley (Daley), but in what it did provide, it misled and misinformed Daley and may well have made it impossible for him to defend the charge against him. For those reasons, we reverse and remand the matter to the Department for further proceedings.
On July 14, 1998, Senior Internal Affairs Investigator Wojciechowicz filed a disciplinary report charging Daley (an inmate at East Jersey State Prison) with planning an assault on a correction officer. The report, a copy of which was served on Daley, describes the charge against him as follows:
Based on information received in an ongoing investigation by the East Jersey State Prison (E.J.S.P.) Internal Affairs Unit (I.A.U.) it was learned that inmate Andrew Daley S.P. #260940 engaged in the planning of an assault against an E.J.S.P. custody staff member (Lt. Pascucci).
That disciplinary report constituted the statement of charges against appellant. Daley pleaded not guilty to the charge and requested and was given a "counsel substitute" to represent him in the matter. Appellant insisted he had no idea who had made the charge against him, and he continued to assert his innocence. He was nevertheless placed in pre-hearing detention, the matter was investigated by Sergeant Vander Thompson of the Department, and a disciplinary hearing was scheduled for three days later, on July 17, 1998. The hearing was adjourned a number of times but was ultimately held on July 27, 1998.
At the hearing, the Department based its case almost entirely on the statement of a confidential informant (CI). A summary of the CI's statement was provided to Daley and his counsel substitute. It read in part as follows:
Subsequent to 6/13/98, I/M [Inmate] Daley was heard by a confidential informant to state that he was planning an assault on Lt. Pascucci at East Jersey State Prison.
This informant submitted to a polygraph and was found to be truthful regarding the relevant questions. I/M Daley was offered a polygraph and refused.
Appellant's counsel substitute had argued both before and at the hearing, that the CI's statement should not be used against appellant because it was "vague, ambiguous and not dated." He also asserted that it violated the requirements set out in Fisher v. Hundley, 240 N.J. Super. 156 (App. Div. 1990) because it failed to disclose where the remarks had been made and what the CI claimed appellant had said. Those objections, and further objections based on the adjournments of the hearing, were overruled and after the proceeding was concluded, the hearing officer found appellant guilty of the charge against him. The officer summed up the evidence of guilt as follows:
I/m stated he would assault Lt. Pascucci. Statement was made to a reliable informant who passed polygraph. Rep. [counsel substitute] objects to use of informants and to postponements. But evidence is sufficient to convince a reasonable person of inmate's guilt. Report and confidential material relied upon (additional confidential material is being held at IA, at E.J.S.P. [presumably East Jersey State Prison]--Exhibit C-2).
In what is apparently an addendum to the "Adjudication of Disciplinary Charge" rendered by the hearing officer, the officer annexed a one-page document entitled "Summary of Confidential Information." ...