Palmigiano v. Baxter, 73--1088

Decision Date09 June 1975
Docket NumberNo. 73--1088,73--1088
PartiesNicholas A. PALMIGIANO, Appellant, v. Joseph BAXTER et al., Appellees.
CourtU.S. Court of Appeals — First Circuit

Stephen J. Fortunato, Jr., Pawtucket, R.I., with whom McKinnon & Fortunato, Pawtucket, R.I., and Ellen Katz, Sharon, Mass., were on brief, for appellant.

Cary J. Coen, John M. Roney, Providence, R.I., Max Stern, Stern & Shapiro, Boston, Mass., and Stanley A. Bass, New York City, on brief, for Robert Flint and Michael Roberts, amici curiae.

W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellee.

ON RECONSIDERATION AFTER REMAND

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

The Supreme Court vacated the judgments of this court in Palmigiano v. Baxter, 487 F.2d 1280 (1 Cir. 1973), vacated and remanded, Baxter v. Palmigiano, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), for reconsideration in light of its decision in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). We have received memoranda of law from the parties and have reconsidered our prior decision.

We begin by recognizing that the prisoner in this case had been given a number of state-guaranteed procedural rights under the rules promulgated by the Rhode Island authorities pursuant to Morris v. Travisono, 310 F.Supp. 857 (D.R.I. 1970). See Palmigiano, supra, 487 F.2d at 1285 n. 13 (1973). What was at issue before this court were three additional rights which were claimed on constitutional grounds: the right to remain silent under circumstances where the subject matter of the disciplinary hearing was also a possible basis for criminal prosecution; the right to require the prison disciplinary board to call adverse witnesses; and the right to have retained counsel at the disciplinary hearing. Of these, we rejected the claim that the board should be required to call adverse witnesses and this holding is supported by the Court's judgment in Wolff that, so long as the fact finders state the evidence relied on and reasons for disciplinary action, prison officials must have discretion 'to refuse to call witnesses that may create risk of reprisal or undermine authority.' 418 U.S. at 566, 94 S.Ct. at 2980. On the other issues before us, we found constitutionally protected rights and we now reconsider those holdings.

The Court in Wolff did not address the issue of the right to remain silent under the circumstances here. Clutchette v. Procunier, 510 F.2d 613 (9th Cir. 1974), opinion on rehearing. In this case, unlike the Ninth Circuit's case in Clutchette, the inmate was specifically advised that the facts giving rise to the disciplinary hearing could also lead to state prosecution, that he should consult his lawyer, and that his silence in the disciplinary hearing would be held against him. A finding of disciplinary infraction could lead to segregation. Having reexamined our original opinion we reaffirm our ruling as to this particular inmate. Where an inmate is called to a disciplinary hearing under the circumstances present here, and is informed that his silence will be used against him, or indeed where his testimony is compelled, use immunity must be provided and the inmate must be so informed. Our prior directive to expunge appellant's in-prison record of findings and decisions relating to the alleged infraction and disciplinary board hearing stands.

We are impelled, however, to reconsider our prior position which we thought struck the appropriate balance between needs of the prison authorities to get to the bottom of any prison problems and protection of the inmate who may face state prosecution for the same offense. We held that the authorities could compel a prisoner to testify *, while giving--we thought--full protection to the prisoner in the form of use immunity in any future prosecution, a step which would impose 'no burden upon the prison disciplinary hearing'. Palmigiano, supra, 487 F.2d at 1289.

We now think that we were in error on two counts. In the first place, we too easily applied the right of an inmate to remain silent without his silence being used against him--the issue in this case--to the situation in which no adverse inference is drawn from silence but in which the inmate must choose whether or not to testify to potentially self-incriminating matters in order to rebut or explain facts presented against him at the disciplinary hearing. Clutchette v. Procunier, 497 F.2d 809, 823, 824 n. 23 (9th Cir. 1974), recently, on this issue, reaffirmed on rehearing, 510 F.2d 613 (9th Cir. 1974). Concededly, the prospect of future criminal prosecution places a prisoner before a disciplinary board in an awkward spot that could make the choice between speaking and remaining silent difficult. But, as we have subsequently held in Flint v. Mullen, 499 F.2d 100 (1st Cir. 1974), not every adverse consequence which flows from remaining silent can be characterized as an unconstitutional penalty upon the exercise of the privilege against self-incrimination.

In the second place, we now realize that allowing prison officials to coerce testimony where they wish by extending immunity has awesome implications. It cheapens the Fifth Amendment. Immunity could be given where it would be scant recompense for the consequences of coerced testimony. There is also the institutional problem. Since prison officials themselves lack the authority to grant immunity, formal judicial proceedings and a full stenographic transcript...

To continue reading

Request your trial
19 cases
  • Baxter v. Palmigiano Enomoto v. Clutchette
    • United States
    • U.S. Supreme Court
    • 20 Abril 1976
  • Avant v. Clifford
    • United States
    • New Jersey Supreme Court
    • 23 Junio 1975
    ...487 F.2d 1280 (1st Cir. 1973) (Palmigiano I), Vacated and remanded 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), said in Palmigiano II, 510 F.2d 534 (1974), despite Wolff (which had not reached the discipline-prosecution 'dilemma,'), that 'in cases where criminal charges are a realis......
  • Gabrilowitz v. Newman
    • United States
    • U.S. Court of Appeals — First Circuit
    • 21 Junio 1978
    ...v. Baxter, 487 F.2d 1280 (1st Cir. 1973), Vacated and remanded, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), Reaffirmed, 510 F.2d 534 (1st Cir. 1974). The Supreme Court disagreed, "(n)either Miranda (V. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), nor Mathis (V. Uni......
  • Nadeau v. Helgemoe
    • United States
    • U.S. Court of Appeals — First Circuit
    • 6 Abril 1977
    ...Palmigiano v. Baxter, 487 F.2d 1280 (1st Cir. 1973), vacated, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974), opinion on remand, 510 F.2d 534 (1974), reversed, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). But we are constrained to say that at the present stage of development of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT