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PLS Protects Prisoners' Right to Call Witnesses At Tier III Hearings - PLSNY
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PLS Protects Prisoners’ Right to Call Witnesses At Tier III Hearings

November 15, 2013

The Department of Corrections and Community Supervision (DOCCS) has a 3-Tier disciplinary procedure for prisoners who are found guilty of violating prison rules, regulations, or even the law. The 3- Tiers are:  Tier I – Violation Hearing; Tier II – Disciplinary Hearing; and Tier III – Superintendent’s Hearing.  Tier III Superintendent’s hearings have the most serious consequences for prisoners.  If found guilty at a Tier III hearing, the hearing officer may deprive the prisoner of human contact by ordering the loss of phone, recreation, or visitation privileges. The hearing officer may also confiscate the prisoner’s personal property or hinder his already limited freedom of movement and association by placing him in keeplock or solitary confinement. Perhaps most significantly, a guilty finding at a Tier III hearing can lengthen the prisoner’s time in prison through the recommendation of loss of goodtime.

Because of the severity of the punishment that can be imposed, the law protects prisoners from arbitrary or unfair hearings by requiring the facility to  respect the fact that prisoners have certain substantive and procedural due process rights at the hearing. (link to “Your Rights at a Tier III Hrg” here). Included in those rights is the right of a prisoner to call witnesses to testify in his defense and (in most circumstances) to be present when the witnesses testify.  So important is this right that when a witness is missing or refuses to testify, the hearing officer must provide the Tier III defendant with a written explanation of the witness’s absence. Unfortunately, this was not how DOCCS’s hearing officer conducted Shindell Pickering’s Tier III hearing.

Mr. Pickering’s case provides an important illustration of why rehearings can be inappropriate and inefficient to address problems that are unlikely to be solved by a second hearing. By the time Mr. Pickering’s case landed on the desks of the attorneys at PLS, he had already been through one faulty disciplinary hearing. At his original hearing, Mr. Pickering requested that the alleged victim testify. When the hearing officer refused to allow Mr. Pickering to be in the same room with this witness, Mr. Pickering asked if the witness could testify by phone. For some reason, there was no telephone testimony at the hearing. Yet, the hearing officer found Mr. Pickering guilty of the charged infractions. The hearing officer docked Mr. Pickering’s goodtime by 9 months and sentenced him to 9 months in solitary confinement.

Two months later, the Director of Special Housing and Inmate Discipline reversed this finding, calling the lack of telephone testimony an “inappropriate denial of witness” and ordering a rehearing. The problem? More than a month before the Director issued his decision, the victim-witness in question had reached his maximum expiration date and been released from prison.  Though it conducted the rehearing in a timely manner, as Judge Stephan Schick  found, DOCCS was “not surprisingly, unable to locate the witness.” Yet, once again, Mr. Pickering was found guilty of the alleged infractions.

PLS’s Plattsburg Office responded by filing an Article 78 petition on Mr. Pickering’s behalf. Article 78 proceedings allow people adversely affected by a state agency decision to have that decision reviewed by the courts. Article 78 cases are notoriously difficult to win because the petitioner (the person affected by the decision) must show that the decision was legally wrong or that the decision-maker abused her discretion AND that the petitioner was harmed by that error or abuse. PLS-Plattsburg was nonetheless undaunted.

On September 5, 2013, Judge Schick granted PLS’s petition, holding that neither the first nor the second hearing passed constitutional muster. It reasoned that DOCCS could not fix the defect in the first hearing by ordering a rehearing when it knew that the witness (whose lack of presence at the initial hearing was the basis of the first appeal) had been released. As a result, the court vacated the hearing and ordered expungement of the charges.