510 F.2d 534 (1st Cir. 1974), 73--1088, Palmigiano v. Baxter

Docket Nº:73--1088.
Citation:510 F.2d 534
Party Name:Nicholas A. PALMIGIANO, Appellant, v. Joseph BAXTER et al., Appellees.
Case Date:December 20, 1974
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 534

510 F.2d 534 (1st Cir. 1974)

Nicholas A. PALMIGIANO, Appellant,

v.

Joseph BAXTER et al., Appellees.

No. 73--1088.

United States Court of Appeals, First Circuit

December 20, 1974

Submitted Sept. 30, 1974.

Certiorari Granted June 9, 1975.

See 95 S.Ct. 2414.

Page 535

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,

Page 536

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...

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