Before Judges Stern, Wefing and Steinberg.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Department of Corrections.
Appellant Robert Decker, an inmate of East Jersey State Prison, appeals from disciplinary sanctions imposed on him for tampering with or blocking a locking device while leaving the institution's mess hall on September 21, 1999, in violation of N.J.A.C. 10A:4-4.1(a)*.154. He claims that the hearing officer improperly denied his request "to cross examine the two witnesses before the disciplinary officer and to confrontation with the reporting officer."
The "Adjudication of Disciplinary Charge" form, which recorded the disposition of the hearing officer, refers to the reports of the charging or "reporting" officer, Senior Corrections Officer Dirmeitis, as the only evidence in support of the charge. *fn1 The Department of Corrections (DOC) contends that the request to confront and cross-examine the officer who charged Decker with the violation was properly denied.
On September 21, 1999, Decker was involved in an incident in which he intentionally tampered with a gate in the correctional facility causing a corrections officer to lose control of the flow of inmates. On this particular day, the officers were attempting to empty the mess hall from the noon meal. When Decker came out, he pushed the exit gate sideways with his foot and hand, causing the gate to thrust back and open towards Senior Corrections Officer Dirmeitis This intentional act jeopardized the security of the facility as it undermined the officer's ability to control the flow of inmates out of the mess hall.
The "Adjudication of Disciplinary Charge" report reflects that the hearing officer found that inmate Decker pushed the door open with his hand and foot and rejected the testimony of Decker and his witnesses that "the incident was an accident." According to the adjudication report, "the officer's reports do not indicate this was an accident."
We do not understand how a hearing officer can reject testimony on the basis that it was inconsistent with the charging officer's report. Nor can we understand how the hearing officer's request for a supplementary report can suffice to satisfy the request for confrontation, at least in this type of case involving the complaint of a known and identified officer who filed the charge against Decker. This is not a case in which an inmate seeks to cross-examine witnesses whose identity must remain undisclosed, or whose information must remain confidential, in order to protect prison security.
In Jacobs v. Stephens, 139 N.J. 212 (1995), the Supreme Court held that inmates had to be advised of their right to confrontation and cross-examination in disciplinary cases. In Jacobs, the inmate was disciplined for "threatening another with bodily harm," id. at 215, based on the report of a corrections officer who perceived a confrontation "as a threat," id. at 216. Because Jacobs did not seek to confront or cross-examine any witness, and asserted only "that he was not informed of his right to confrontation and cross-examination and therefore he could not validly waive those rights," the Court affirmed the sanctions imposed. Id. at 222. The Court noted that even if Jacobs was not informed of this right, "he was not prejudiced because the testimony of his inmate witnesses did not support his position." Ibid. The Court made clear that "[i]n future cases, however, the inmate will be deemed informed because he must sign an amended Adjudication Form . . . one of whose questions will be whether the inmate seeks confrontation or cross-examination," ibid., and that, pursuant to regulation, "confrontation and cross-examination may be refused only when they would be unduly hazardous to institutional safety or correctional goals." Id. at 221.
In McDonald v. Pinchak, 139 N.J. 188, 202-03 (1995), decided the same day as Jacobs, the Court remanded to the Department of Corrections for further proceedings in order to amplify the record with respect to whether the inmate requested the opportunity to cross-examine and confront the witnesses against him. The hearing officer's report did not reflect that McDonald had made such a request. Id. at 193. According to the Court's opinion, the relevant boxes were not checked and the words "not requested" were written on the relevant lines. Ibid. In considering the fundamental rights of inmates as detailed in the constitutional decisions and DOC regulations, Justice Garibaldi wrote:
Indeed, the daily interaction between inmates and prison officials can create a tense environment that requires special measures to ensure safety. Swift and certain punishment is one tool prison officials use to maintain order and discourage future misconduct by a perpetrator. Thus, a court must weigh any expansion or refinement of long-established due-process rights of prisoners against the safety of all the prisoners and of the corrections staff.
Despite the need to avoid aggravation of the already high level of confrontation inherent in a prison setting and to maintain personal security within the system, the United States Supreme Court in Wolff [v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)] held that inmates are entitled to certain protections. 418 U.S. at 556, 94 S. Ct. at 2974, 41 L. Ed. 2d at 951. At a ...