April 21, 2009
JAMES MEAGHER, APPELLANT,
DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges Waugh and Ashrafi.
James Meagher, a state prison inmate, appeals disciplinary sanctions imposed upon him for threatening a corrections officer. He denies that he made any threat. At his disciplinary hearing, the evidence was solely the officer's word against the inmate's. Because the prison administrator did not give an adequate reason for denying the inmate's request for a polygraph examination to support his credibility, we remand to the Department of Corrections either to administer a polygraph and reconsider the charge or to provide an adequate explanation for denying the inmate's request.
On May 12, 2008, appellant Meagher was charged with threatening an officer with bodily harm. The accusing officer reported that at 2:25 p.m. on that date:
While ordering I/M Meagher to clear the floor, this I/M stated to this officer 'Don't think your going to change this tier; you'll get f****d up'. I/M Meagher was loitering on the flats next to the dayroom.
Meagher gave the following statement as his version of the incident:
I was in the dayroom. When I exited the dayroom he told me to go back in the dayroom. He was not by his desk. He was on the stairs. He said, "Don't try anything new." Nobody made a threat. The only thing I said was, "Can I see a sgt." and went into the dayroom and waited for a sgt.
During a disciplinary hearing conducted over several days from May 15 to 21, 2008, Meagher was afforded the right to confront the accusing officer through written questions submitted to the hearing officer. His request for a polygraph examination was referred to the prison administrator and denied.
The hearing officer found Meagher guilty relying on "Staff reports/observation to support charge." The recommended sanctions of 15 days detention, 365 days administrative segregation, and 365 days loss of commutation time were adopted by the prison administration. Meagher appealed unsuccessfully to the prison administrator, and then filed a timely notice of appeal to this court.
In Avant v. Clifford, 67 N.J. 496, 523-24 (1975), the Supreme Court noted that a prison disciplinary proceeding is not a criminal prosecution and does not require the same due process protections as in criminal courts. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed. 2d 484, 499 (1972). Nevertheless, the Court expanded the due process rights of New Jersey's inmates beyond the minimal federal constitutional rights required under Wolff v. McDonnell, 418 U.S. 539, 563-66, 94 S.Ct. 2963, 2978-79, 41 L.Ed. 2d 935, 955-56 (1974).
The due process rights of New Jersey inmates include: (1) written notice of the charges at least twenty-four hours before the hearing, (2) an impartial tribunal, (3) a limited right of the inmate to call witnesses and present documentary evidence, (4) a limited right to confront and cross-examine adverse witnesses in appropriate cases, (5) a written statement of the evidence relied upon and the reasons for the sanctions imposed, and (6) a limited right to the assistance of counsel substitute. Avant, supra, 67 N.J. at 525-39. The Court in Avant also held that disciplinary action may be taken where the inmate's involvement in the infraction is supported by "substantial evidence." Id. at 530.
Applying these due process rights to particular cases, we have previously addressed circumstances where the charge against the inmate is based entirely on uncorroborated accusations made by a corrections officer. In Decker v. New Jersey Department of Corrections, 331 N.J. Super. 353, 359 (App. Div. 2000), we held:
[W]here the inmate is charged with a disciplinary infraction by virtue of conduct directed to or at a corrections officer and the matter turns on the credibility of the officer or the inmate, the inmate, upon request, is entitled to confrontation and cross-examination of the officer, at least in the absence of any reasons that justify an exception as a matter of prison security.
See Gross v. N.J. Dep't of Corr., 167 N.J. 626 (2001) (petition for certification granted and decision below summarily reversed to permit cross-examination of officers) (citing Decker, supra, 331 N.J. Super. 353).
Likewise, in Jones v. Department of Corrections, 359 N.J. Super. 70, 76 (App. Div. 2003), we held that an inmate had a right to cross-examine the accusing officer. We said there that the hearing officer's decision "was a determination that could not be fairly reached without affording Jones the opportunity to address the credibility issue effectively" by cross-examination. Ibid.
In this case, the confrontation hearing was conducted in conformity with N.J.A.C. 10A:4-9.14. Meagher provided questions in writing to the hearing officer, who then posed those questions to the accusing officer. The accusing officer answered orally and the hearing officer wrote his answers to make a record. Meagher had a right to and did ask a few follow-up questions in the same way. There was no direct cross-examination of the accusing officer.
Meagher does not challenge the manner of confrontation permitted. Rather, he requested the opportunity to bolster his own credibility through a polygraph examination. The prison administrator denied the request, stating:
I have reviewed the disciplinary charges and evidence. I see no issues of credibility that cannot be addressed by the Hearing Officer at your hearing.
Your request for a polygraph is denied.
We suggest no new conclusion here about the accuracy of a polygraph. Our courts have consistently found the results of polygraphs too unreliable for admission as evidence. See State v. A.O., ___ N.J. ___, 965 A.2d 152, ___ (2009)(slip op. at 26- 27); State v. Domicz, 188 N.J. 285, 312-13 (2006); State v. Driver, 38 N.J. 255, 261 (1962). Nevertheless, our prisons make use of polygraphs at times to help adjudicate disciplinary matters, in particular, when there are issues of credibility. See N.J.A.C. 10A:3-7.1(c).
The prison administrator may exercise discretion in deciding when it is appropriate to administer a polygraph. Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 24 (App. Div. 2005). A polygraph is not required simply because the inmate requests one. See id. at 23; Johnson v. N.J. Dep't of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997). At the same time, "a prison administrator's discretion must be guided by whether the request for a polygraph if denied will impair the fundamental fairness of the disciplinary proceeding." Ramirez, supra, 382 N.J. Super. at 24. In situations where the hearing officer must make a credibility determination between two opposing factual versions without the aid of any other evidence, fundamental fairness may require that an inmate be permitted to offer polygraph results of his denial.
In Engel v. New Jersey Department of Corrections, 270 N.J. Super. 176, 178 (App. Div. 1994), the inmate was accused of planning to escape on the basis of information from an unidentified confidential informant. The inmate denied the accusation. We concluded that the inmate's request to take a polygraph should have been granted because the record did not contain a shred of corroboration for the accusation. We held that the prison administrator had mistakenly exercised discretion in failing to acknowledge the importance of the credibility determination. Id. at 180.
In this case, the prison administrator denied a polygraph examination on the ground that the hearing officer could address any issues of credibility. But the hearing officer did not address credibility at all in her report. Nothing in the record before us reveals upon what evidence or other criteria the hearing officer found the accusing officer's version more credible than Meagher's. See Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 122 (App. Div. 2002) ("when an administrative body renders a decision and fails to make adequate findings of fact and give an expression of reasoning which, when applied to the found facts, led to the conclusion below, the decision cannot stand"). The accusing officer's status alone cannot be the basis for a favorable credibility decision because the inmate would thus be denied a fair opportunity to present a defense. See Jones v. Dep't of Corr., supra, 359 N.J. Super. at 76.
Because the record contains neither reasons for accepting the officer's version over the inmate's, nor an adequate explanation for denying a polygraph, Meagher's due process rights may not have been protected.
We remand to the institution for a further explanation of why a polygraph examination was denied. The Department of Corrections shall conduct further proceedings as it deems appropriate and present to this court and to Meagher additional factual support for its decision denying a polygraph examination. Alternatively, the Department may administer a polygraph as requested and reconsider imposition of disciplinary sanctions against Meagher with additional evidence from the polygraph. In either event, the Department shall report the results of the remand to the clerk of this court within forty-five days of this decision. The court reserves the right to request further briefs.
We retain jurisdiction.
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