Before Judges Kestin, Fall and Weissbard.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 29, 2003
On November 11, 2001, Daymon Jones, an inmate at Southern State Prison, became the object of institutional disciplinary charges alleging that he had threatened Correctional Officer Panichelli with bodily harm "or with any offense against his or her person or his or her property" in violation of N.J.A.C. 10A:4-4.1(a)*.005. When the charge was investigated, Jones denied the allegations, stating: "It's all a fabrication. I never threatened him."
The required disciplinary hearing was convened on November 13, but was postponed when Jones invoked his right to confront and cross-examine his accuser, Panichelli, as well as his need for a witness statement from another correctional officer, Tyson, who, Jones asserted, had been an eyewitness to the incident. The hearing reconvened two days later, on November 15, but was postponed again, pending compliance with the hearing officer's requirement that Jones submit written confrontation questions for Panichelli. When the matter reconvened on November 16, it was postponed further, pending receipt of Panichelli's written responses to the questions submitted by Jones.
The merits of the matter were addressed on November 19. The hearing officer reviewed the written disciplinary charge that Panichelli had filed. The specifications alleged that, during a routine search of Jones's locker, Panichelli had found a tape dispenser and pink highlighter, which he "seized as contraband." The written form went on to allege that Jones responded with an epithet and a threat of physical violence the next time Panichelli examined his locker. The charge also specified that Jones, about three feet away from Panichelli, raised his fists toward the officer's face. In addition to the written charge, the hearing officer also reviewed two reports bearing upon the "contraband," two others dealing with preliminary procedures, two "escort reports," and a report from the prison nurse.
Jones presented a defense with the assistance of a "counsel substitute." Jones testified to a different version of events than Panichelli had reported. He argued, as well, that the various reports and statements considered by the hearing officer were inconsistent, and that Panichelli had filed a false report. The record and the hearing officer's "adjudication of disciplinary charge" disclose that the evidence Jones sought to elicit from Panichelli was presented in the form of written questions and answers, and that the evidence from Tyson was in the form of a written statement.
Relying on this evidentiary record, the hearing officer sustained the charge. She determined specifically that Panichelli's report was credible and that there "was no reason for [him] fabricate [the] charge." The hearing officer recommended a sanction of detention for fifteen days with credit for time served, 180 days of administrative segregation, and loss of 180 days of commutation time. On internal review, the administrative segregation sanction was modified with a suspension of sixty days of the time initially ordered.
On appeal, Jones raises a single issue: that he "should have been afforded the opportunity to confront and cross-examine [the] officer filing a charge against him, and an opportunity to question the witness for him." He argues that when face-to-face confrontation and cross-examination were denied, he "wasn't able to fully defend himself." The Department of Corrections (Department) argues in response that the hearing officer's decision should be affirmed because the procedure employed "comported with all procedural due process requirements and the finding of guilt is supported by substantial, credible evidence." We reject the Department's argument and reverse, remanding for a new hearing that reflects recognition of Jones's due process right to confrontation and cross-examination, and of his litigation right to witness access.
Where a party's opportunity to develop and present evidence supporting his challenge to charges filed against him has been unduly curtailed, there can be no determination that the requirements of the substantial evidence rule have been satisfied. Application of the substantial evidence rule presupposes an adequate opportunity by the party against whom a decision has been rendered to have marshalled and offered evidence.
With allowances for the special rule that due process rights in prison disciplinary proceedings may be tailored to meet the needs of the institutional context in which such proceedings arise, prison inmates may not be deprived of basic due process protections. See Avant v. Clifford, 67 N.J. 496, 525 (1975)(citing Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2953, 41 L.Ed. 2d 935 (1974)).
The opportunities to confront one's accusers and cross- examine them, and to develop one's own proofs, are basic protections in our system of adjudication, Chambers v. Mississippi, 410 U.S. 284, 294, 293 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973), especially in matters with penal qualities, State v. P.H., 353 N.J. Super. 527, 537 (App. Div. 2002), and specifically in prison inmate disciplinary proceedings. See McDonald v. Pinchak, 139 N.J. 188, 196-99 (1995); N.J.A.C. 10A:4-9.13(a), -9.14(a). Although such basic rights may be waived, or limited in prison inmate disciplinary matters as compelling considerations of the specific case or legitimate institutional needs may suggest, they cannot be denied or limited in any way that dilutes them to the vanishing point. See Wakefield v. Pinchak, 289 N.J. Super. 566, 571-72 (App. Div. 1996), certif. denied, 165 N.J. 677 (2000).
The purpose of the confrontation right is to guarantee "a meaningful opportunity to present a complete defense." State v. Budis, 125 N.J. 519, 531 (1991)(quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636, 645 (1986)). Likewise, the correlative right of cross-examination is designed to afford a party the opportunity to "face [his] accusers and to cross-examine the State's witnesses." Budis, supra, 125 N.J. at 530-31 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40, 53 (1987)). And further, testimonial access to witnesses in the control of the opposing side, is a basic litigation right. See State v. Varona, 242 N.J. Super. 474, 485 (App. Div.), certif. denied, 122 N.J. 386 (1990)(citing Pennsylvania v. Ritchie, supra, 480 U.S. at 56, 107 S. Ct. at 1001, 94 L. Ed. 2d at 56-57.)
When Jones was denied in-person confrontation and cross- examination in respect of Panichelli, his accuser, he was deprived of the fundamental opportunity to develop his defense by revealing the weaknesses in the accusation against him either on the basis of the accuser's credibility or otherwise. The hearing officer's decision was based on a credibility finding favorable to Panichelli. It was a determination that could not be fairly reached without affording Jones the opportunity to address the credibility issue effectively. See Avant, supra, 67 N.J. at 530. And, the hearing examiner failed to make the findings mandated by rule before that right could be curtailed. See N.J.A.C. 10A:4-9.14(b) (requiring, ...