UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-50180
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ROBERT THOMAS BARNES,
Petitioner-Appellee,
v.
GARY L. JOHNSON, Director, Texas Department of
Criminal Justice, Institutional Division,
Respondent-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
August 6, 1999
Before WIENER and PARKER, Circuit Judges, and LAKE, District
Judge.*
LAKE, District Judge:
The Director of the Texas Department of Criminal Justice
appeals from the Final Judgment of the district court conditionally
granting a writ of habeas corpus to a state prisoner whom the court
concluded had been denied the right of confrontation at a parole
revocation hearing. For the reasons explained below we REVERSE the
judgment of the district court and VACATE the writ.
I. Facts and Procedural History
*
District Judge of the Southern District of Texas, sitting by
designation.
In 1984 Robert Thomas Barnes pled guilty to one count of
aggravated sexual assault of a child and was sentenced to twenty-
five years in prison. Barnes was released from prison on mandatory
supervision in November of 1993. In August of 1995 the State of
Texas moved to revoke Barnes’s parole after Debra Odom accused
Barnes of sexually assaulting her. Barnes denied the allegation
and counsel was appointed to represent him. A hearing officer of
the Texas Board of Pardons and Paroles conducted a preliminary
hearing on September 22, 1995, and a revocation hearing on
November 9, 1995.
Odom suffers from Downs Syndrome. Although at the time of the
revocation hearing Odom was 34 years old, the hearing officer found
that she had the mental age of a six- or seven-year-old child. The
hearing officer found that Odom was a fearful witness and that good
cause thus existed to remove Barnes from the room during Odom’s
testimony. The hearing officer allowed Barnes’s counsel to cross-
examine Odom, to ask for continuances to speak with Barnes outside
of the hearing room, and to replay Odom’s tape-recorded testimony
for Barnes. At the conclusion of the hearing the hearing officer
found that Barnes had sexually assaulted Odom in February of 1995
and recommended that his parole be revoked. On December 1, 1995,
the State revoked Barnes’s parole release.
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After the state courts denied Barnes’s application for writ of
habeas corpus,1 Barnes sought habeas relief in federal district
court raising seven grounds for relief:
(1) violation of the Sixth Amendment’s Confrontation
Clause,
(2) ineffective assistance of counsel,
(3) denial of his right to present medical records,
(4) denial of the opportunity to present witnesses,
(5) denial of his right to a neutral and detached
hearing body,
(6) denial of equal protection of the laws in pursuing
the parole violation against him, and
(7) denial of due process at the revocation hearing.
The State moved for summary judgment. The magistrate judge
recommended that the district court deny the State’s motion for
summary judgment and grant Barnes a writ of habeas corpus on the
Confrontation Clause claim. The district court independently
reviewed the record and also considered audio tapes of the parole
revocation hearing that had not been filed when the magistrate
judge made his recommendation. The district court accepted the
1
On June 24, 1996, Barnes filed an application for writ of
habeas corpus in the state courts alleging inter alia a violation
of the Sixth Amendment’s Confrontation Clause. Finding that Barnes
had filed previous applications for habeas corpus challenging his
conviction, which had been denied, the state trial court
recommended that Barnes’s application be denied and that the Texas
Court of Criminal Appeals cite Barnes for abuse of the writ. Order
at 1-2, Ex Parte Barnes, No. 11,657-07, 66-67 (Tex. Crim. App.
Aug. 28, 1996). On August 28, 1996, the Texas Court of Criminal
Appeals denied Barnes’s application “without written order.” Id.
at cover. The district court concluded that no deference to the
state court findings or conclusions was required because there were
no findings or conclusions to defer to.
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magistrate judge’s recommendation and granted a conditional writ of
habeas corpus, ordering the State either to release Barnes or to
provide him with a new revocation hearing within thirty days.2
This court granted the State’s motion for a stay pending appeal.
II. Analysis
This court reviews de novo constitutional challenges
concerning the right to confront adverse witnesses. United States
v. Grandlund, 71 F.3d 507, 509 (5th Cir. 1995).
In Morrissey v. Brewer, 92 S. Ct. 2593 (1972), the Court
recognized that a parole revocation hearing is not a criminal
prosecution and thus “the full panoply of rights due a defendant in
such a proceeding does not apply. . . .” Id. at 2600. The Court
held that the Due Process Clause nevertheless requires certain
minimal safeguards to protect the limited liberty interest at stake
in a parole revocation hearing. The Court stated that a parolee is
entitled to
(1) written notice of the alleged parole violations,
(2) disclosure of the evidence against him,
(3) an opportunity to be heard personally and to
present evidence,
(4) “the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation),”
(5) a hearing before a neutral and detached body, and
2
The district court did not consider Barnes’s other grounds
for relief. Because Barnes would only be entitled to a new
revocation hearing were he successful on those grounds, the
district court concluded they were moot since the court had already
ordered the state to provide Barnes a new hearing.
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(6) a written statement by the fact finders describing
the evidence reviewed and the reasons for revoking
parole.
Id. at 2604 (emphasis added). After listing these requirements the
Court “emphasize[d] [that] there is no thought to equate this
second stage of parole revocation to a criminal prosecution in any
sense” and that the Court had “no thought to create an inflexible
structure for parole revocation procedures.” Id.3
This court has held that to fall within the good-cause
exception to the right of confrontation at a parole revocation
hearing the hearing officer must make an explicit, specific finding
of good cause and state the reasons for that finding. See
Grandlund, 71 F.3d at 510 n.6; Baker v. Wainwright, 527 F.2d 372,
378 (5th Cir. 1976). The hearing officer must weigh the parolee’s
interest in confronting the witness with the government’s interest
in denying the parolee that right. Williams v. Johnson, 171 F.3d
300, 304 n.4 (5th Cir. 1999), pet. for cert. filed, No. 99-5046
(U.S. June 28, 1999); United States v. McCormick, 54 F.3d 214, 221
(5th Cir. 1995). An important consideration in this balancing is
the reliability of the challenged testimony. See Grandlund, 71
F.3d at 510; McCormick, 54 F.3d at 223.
At Barnes’s revocation hearing his parole officer asked the
hearing officer to exclude Barnes from the hearing room while Odom
testified because Odom was a fearful witness. When Barnes objected
3
The Court stated that the parole revocation process “should
be flexible enough to consider evidence including letters,
affidavits, and other material that would not be admissible in an
adversary criminal trial.” Id.
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the hearing officer sent Barnes out of the room and questioned Odom
and her grandmother, with whom Odom lived, to determine if Odom was
afraid to testify in Barnes’s presence. After considering their
testimony the hearing officer found that Odom was a fearful witness
and ordered that Barnes remain outside the room while she
testified. The transcript of the hearing contains the following
finding by the hearing officer:
Okay, counselor, I am prepared to declare Ms. Odom a
fearful witness in this matter. I do not feel she is
mentally capable to testify in the capacity with
Mr. Barnes present. I think she is suffering from the
Down[s] Syndrome. Several factors involved [sic], . . .,
I do believe she falls within the classification of the
fearful witness and will make such a finding. I noted
your objection to Mr. Barnes’s right to cross examination
and confront. I am going to overrule the objection and
I will make a good cause finding for the declaration of
fearful witness.4
In the formal report of the hearing the hearing officer made the
following finding:
GOOD CAUSE DETERMINATION: Good Cause was found to GRANT
the Fearful Witness status to the Complainant who is
suffering from down syndrome [sic], has a mental age of
approximately a 6 to 7 year old as testified to by her
grandmother who is the legal guardian. The Complainant
indicated that she was scared of the RELEASEE.
Complainant’s grandmother [sic] that her granddaughter
was afraid of the RELEASEE.5
In evaluating Barnes’s Confrontation Clause claim the district
court concluded that it was appropriate to rely by analogy on cases
applying the Confrontation Clause to criminal trials. The court
applied the standards announced in Maryland v. Craig, 110 S. Ct.
4
Transcript of November 9, 1995, revocation hearing at
page 23.
5
November 15, 1995, Revocation Hearing Report at page 3-A.
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3157 (1990). In Craig the Court held that testimony by an abused
child over a one-way, closed-circuit television did not violate the
right of a defendant in a criminal trial to confront adverse
witnesses. Recognizing that the state’s interest in protecting
child abuse victims from further embarrassment and trauma is
compelling, the Supreme Court concluded that the interest in a
child’s emotional well-being “may be sufficiently important to
outweigh, at least in some cases, a defendant’s right to face his
or her accusers in court.” Id. at 3167. The Court held that a
trial court may employ an alternative to face-to-face confrontation
when ”necessary to protect a child witness from trauma that would
be caused by testifying in the physical presence of the defendant,
at least where such trauma would impair the child’s ability to
communicate. . . .” Id. at 3170.
Applying the Maryland v. Craig standard for criminal trials as
the standard for good cause, the district court concluded that the
State had not shown good cause for excluding Barnes from the
hearing room while Odom testified because the hearing officer had
not specifically found that Odom “feared Petitioner to the extent
that she would be unable to testify or that such trauma would
impair her testimony.”6 Although the hearing officer had found
that Odom was afraid of Barnes, the district court concluded that
this generalized fear was not sufficient under Maryland v. Craig to
constitute good cause.
6
Order Accepting Recommendation of Magistrate Judge at page 7.
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We conclude that the district court erred in requiring the
State to satisfy the Maryland v. Craig standard in a parole
revocation hearing and in failing to balance the interests of the
State and Barnes.
The district court’s adherence to Maryland v. Craig went
beyond the requirements of Morrissey v. Brewer. Maryland v. Craig
sets a higher standard for criminal trials than does Morrissey v.
Brewer for revocation hearings. In several decisions we have
applied the Morrissey v. Brewer test to determine whether good
cause existed to revoke state parole or federal supervised release
when the defendant did not have the opportunity to confront
witnesses against him.7 In United States v. McCormick, 54 F.3d at
226, we affirmed a revocation of supervised release even though
McCormick was not allowed to cross-examine laboratory technicians
or the laboratory’s director of toxicology whose urinalysis reports
and affidavit were relied upon by the district court in finding
that McCormick possessed a controlled substance. We concluded that
given the reliability of the reports, as explained in the
director’s affidavit, and the indicia of reliability of the
affidavit itself, the record supported the district court’s
implicit finding that the difficulty and expense of calling the
laboratory technicians and the expense to the government and the
disruption to the laboratory in calling the director were good
cause for denying McCormick’s right to confront and cross-examine
7
In United States v. McCormick, 54 F.3d at 221, we explained
that the Morrissey v. Brewer good cause analysis also applies to
federal supervised release revocation proceedings.
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the technicians and director. Id. at 221-226. In United States v.
Grandlund, 71 F.3d at 511, we reached a similar result, holding
that “[a]voiding the delay, difficulty, and expense of securing the
appearance of distant witnesses” was sufficient good cause to deny
the defendant at a supervised release revocation hearing the right
to confront and cross-examine laboratory personnel who prepared
reports of analyses of defendant’s urine samples, given the indicia
of reliability of the many reports.
On the other hand, in Williams v. Johnson, 171 F.3d at 306, we
held that the state’s policy of not requiring parole officers to
travel outside their districts to attend parole revocation hearings
was not sufficient good cause to deny a parolee the right to cross-
examine the officer, absent some assessment of the strength of the
parolee’s competing need to cross-examine the parole officer, and
we have held that the mere fact that the complaining witness to a
sexual assault charge was out of state at the time of a revocation
hearing was not good cause for excusing her from attending a
revocation hearing and allowing other witnesses to give hearsay
renditions of her testimony. McBride v. Johnson, 118 F.3d 432,
438-439 (5th Cir. 1997).
Our purpose in citing these decisions is not to attempt to
catalogue the universe of reasons that may or may not constitute
good cause for dispensing with the right of confrontation at a
parole revocation hearing. Our case law makes clear that this is
a flexible requirement, depending in part on the importance of the
testimony and the parolee’s need to confront the witness. In
Barnes’s case, however, the district court, by applying the more
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rigorous requirements of Maryland v. Craig, failed to apply the
proper standard for determining whether the hearing officer’s
finding that Odom was a fearful witness satisfied the more relaxed
good cause requirement of Morrissey v. Brewer.
Good cause in the context of a parole revocation hearing is
determined by balancing the interests of the government and the
parolee. See Williams, 171 F.3d at 304 n.4, 306; McCormick, 54
F.3d at 221; Baker, 527 F.2d at 377. Certainly, in a case like
this, where Barnes’s revocation was based primarily on the disputed
testimony of Odom, Barnes had a significant interest in confronting
her. At the revocation hearing the hearing officer balanced that
interest against the State’s interest and concluded that the fear
of a mentally retarded complainant of testifying in the presence of
the man who allegedly assaulted her outweighed Barnes’s interest in
being present in the hearing room given the procedures the hearing
officer implemented to assure an effective cross-examination of
Odom by Barnes’s attorney. The district court, by not also
considering and balancing those competing interests, failed to
follow the requirements of Morrissey v. Brewer and our decisions
applying it.
We REVERSE the Judgment of the district court, VACATE the Writ
of Habeas Corpus, and REMAND the case to the district court for
further proceedings consistent with this Opinion.
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