Legal Research AI

Barnes v. Johnson

Court: Court of Appeals for the Fifth Circuit
Date filed: 1999-08-06
Citations: 184 F.3d 451
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                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                      _______________________
                            No. 98-50180
                      _______________________


                        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.


                                     -3-
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.

                                    -5-
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.

                                    -6-
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.

                                  -7-
     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.

                                              -8-
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

                                -9-
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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