Grisel v. Oregon State Penitentiary

614 P.2d 1231, 47 Or. App. 673, 1980 Ore. App. LEXIS 3221

• Court: Court of Appeals of Oregon
• Decided: August 11, 1980
• Docket: 02-80-169, CA 17178
• Status: Published

Opinions

RICHARDSON, P.J.

Petitioner, an inmate at the Oregon State Penitentiary, was found guilty of violating a prison disciplinary rule prohibiting assault. On appeal he contends that the disciplinary committee improperly considered information from a confidential informant.

Inmate Smith was stabbed in the chest. A prison staff member filed a misconduct report alleging petitioner had stabbed Smith. The report stated:

"I received information from an informant (eye witness) whose identity must remain anonymous as disclosure would jeopardize his personal safety and whose information has proven reliable in the past that you stabed inmate Smith, K. 41573. The eye witness, informant, said T saw Grisel stab Smith.’ Inmate Smith received a puncture wound approximately 1/4” wide midway between navel and niple 1 1/2” left of center.”

The state concedes that without the confidential informant’s statement there would be insufficient evidence to support the committee’s finding of guilt.

In essence, petitioner argues that admission of the informant’s statement violated the holding in Bartholomew v. Reed, 477 F Supp 223 (D Or 1979). In that case the United States District Court for Oregon held that the former Corrections Division rule, OAR 291-105-035(5)(e),¹ was unconstitutional.

In discussing the confidential informant rule the court said:

"* * * It is clear that Wolff [Wolff v. McDonnell, 418 US 539, 94 S Ct 2963, 41 L Ed 2d 935 (1974)] contemplates a decision based on factual evidence presented to the disciplinary committee. * * *

"Part of the committee’s task as a factfinder is to evaluate credibility and reliability of the evidence presented. This process is severly hampered if they are normally permitted (or required) to rely upon mere 'conclusory representations.’ Because Wolff held that an inmate need not be given the opportunity to confront and cross examine adverse witnesses, it is especially important that the factfinders be presented with complete information on which to base their assessment of the informant’s testimony. In order to properly consider the weight to be given to the testimony of informants, normally their identity or the exact nature of the information they have furnished, or both, ought to be revealed to the disciplinary committee. This does not, of course, mean that the informant’s identity or the precise nature of his information must be revealed to the subject of the disciplinary proceeding. * * *” 477 F Supp at 228.

Following the decision in Bartholomew v. Reed, supra, the Corrections Division adopted a temporary rule which provides:

"(1) When unidentified informant testimony is presented to the Hearings Officer, the identity of the informant or the statement of the informant, or both, shall be revealed to the Hearings Officer.

"(2) Information must be submitted to the Hearings Officer upon which the Hearings Officer can find that the informant is reliable in the case at issue.” Administrative Order 19-1979 (Temp), VI (F)(1)(e).

The rule requires that identity of the informant or his statement be disclosed to the hearings officer and that the hearings officer be presented with information upon which to base a conclusion that the informant is reliable in this instance.

The misconduct report did not disclose the name of the informant; however, his exact statement was quoted, i.e., "I saw Grisel stab Smith.” In addition, the report revealed that the informant was an eyewitness and that he had proven reliable in the past. This is sufficient to support a conclusion that the informant is reliable in this instance and the information ascribed to the informant was properly admitted.

Affirmed.

1 Former OAR 291-105-035(5)(e) provided:

"Information derived from unidentified informants may be considered by the disciplinary committee:

"(A) The disciplinary committee must find good cause to believe that an individual would be in jeopardy or at unusual risk of harm if his/her identity and statement were revealed.

"(B) The record must contain information from which the disciplinary committee can reasonably conclude that the informant’s statement is reliable.

"(C) Since experience shows that revealing the identity of the informant or his/her exact statement in the disciplinary process creates substantial risk that the informant’s identity will be discovered and the informant placed in jeopardy, the disciplinary committee need not know the identity of the informant nor the exact statement to satisfy these standards, but may rely upon conclusory representations and a summary of evidence submitted by the recipient of the confidential information who must be identified.”