Asherman v. Meachum, 002

• Decision Date: 13 February 1992
• Docket Number: No. 002,D,002
• Citation: 957 F.2d 978
• Parties: Steven M. ASHERMAN, Petitioner-Appellee, v. Larry MEACHUM, Commissioner, Connecticut Department of Correction, Respondent-Appellant. ocket 90-2530.
• Court: U.S. Court of Appeals — Second Circuit

Page 978

957 F.2d 978

60 USLW 2566

Steven M. ASHERMAN, Petitioner-Appellee, v. Larry MEACHUM, Commissioner, Connecticut Department of

Correction, Respondent-Appellant.

No. 002, Docket 90-2530.

United States Court of Appeals, Second Circuit.

Argued Sept. 10, 1991.

Decided Feb. 13, 1992.

Stephen J. O'Neill, Asst. Atty. Gen., Hartford, Conn. (Richard Blumenthal, Atty. Gen., Steven R. Strom, Asst. Atty. Gen., on the brief), for respondent-appellant.

William J. Tracy, Jr., Bristol, Conn. (Furey, Donovan, Eddy, Kocsis, Tracy & Daly, on the brief), for petitioner-appellee.

Before OAKES, Chief Judge, and LUMBARD, MESKILL, NEWMAN, KEARSE, CARDAMONE, WINTER, PRATT, MINER, ALTIMARI, MAHONEY, WALKER and McLAUGHLIN, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal was reheard in banc to reconsider the issue of whether prison officials violate the Self-Incrimination Clause of the Fifth Amendment by terminating the supervised home release of a sentenced prisoner upon notification that the prisoner would refuse to answer questions about his crime at a scheduled psychiatric evaluation. The issue arises on an appeal by the Commissioner of the Connecticut Department of Correction from a judgment of the District Court for the District of Connecticut (Ellen Bree Burns, Chief Judge) granting the petition of Steven M. Asherman for a writ of habeas corpus. We hold that such action does not violate the Fifth Amendment. We therefore vacate the panel opinion that had affirmed the District Court's judgment and return the appeal to the panel for consideration of any remaining issues.

Facts

Asherman was sentenced in 1980 to a term of seven to fourteen years by the Connecticut Superior Court after his conviction for first-degree manslaughter. His conviction was affirmed on direct review by the Connecticut Supreme Court, State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985), and a federal habeas corpus challenge to the conviction was rejected by the District Court, Asherman v. Meachum, 739 F.Supp. 718 (D.Conn.), aff'd mem., 923 F.2d 845 (2d Cir.1990).

Asherman began serving his sentence in March 1985. In December 1987, the Connecticut Commissioner of Corrections granted his application for supervised home release (SHR). See Conn.Gen.Stat. 18-100(e) (1990). Asherman was released initially to a halfway house and thereafter resided with his wife in an apartment. On July 19, 1988, the Connecticut Parole Board denied Asherman's application for parole. On August 19, 1988, the Commissioner instructed Asherman to report to the Commissioner's office for a psychiatric evaluation. The Commissioner later testified that he was "concerned about what this [parole] denial may mean in terms of [Asherman's] mind, and his behavior."

On August 22, 1988, Asherman's attorney wrote the Commissioner, stating that Asherman would not "participate in any interrogation which is related to the crime for which he was charged." The federal habeas corpus petition challenging the conviction was then pending in the District Court. When Asherman reported as ordered, he was returned to confinement within the state prison system.

Thereafter, a prison disciplinary board determined that Asherman had violated the terms of his SHR and should be removed from SHR status. The Commissioner subsequently reversed the determination of a disciplinary violation, but confirmed the termination of SHR status. In a written explanation of his reasons, the Commissioner stated:

Your refusal to fully participate in this psychiatric evaluation precludes me from obtaining information necessary to determine whether the ... conclusion of the Board of Parole affected you to the point where you no longer are a suitable person for home release status.

The absence of the information referred to ... constitutes sufficient ground for determining that you no longer are a suitable person for home release status.

Thereafter a state court habeas corpus challenge to the SHR termination resulted in Asherman's temporary return to SHR status, but that reprieve was ended when the Connecticut Supreme Court rejected the habeas corpus challenge. See Asherman v. Meachum, 213 Conn. 38, 566 A.2d 663 (1989). Asherman then renewed his challenge to the SHR termination by bringing the pending habeas corpus challenge in the District Court. The District Court granted relief on the ground that the termination of Asherman's SHR status had violated his self-incrimination privilege, a panel of this Court affirmed, Asherman v. Meachum, 932 F.2d 137 (2d Cir.1991), and a rehearing in banc was ordered.

Discussion

The issue presented, though important, is rather narrow. It concerns the extent to which state officials may take adverse administrative action in response to a refusal to answer questions under circumstances where the answers might tend to incriminate but are also relevant to the proper exercise of state authority. In resolving that issue, we are willing to make several assumptions for purposes of this case. First, we assume, without deciding, that the answers to the questions Asherman refused to answer created a risk of self-incrimination. In saying that, we are not deciding whether, had Asherman responded to questions about his crime, the State may lawfully use such answers against him in any criminal proceeding. We assume only that Asherman reasonably apprehended a risk of self-incrimination, sufficient to warrant his assertion of the privilege. Second, we assume, without deciding, that Asherman's challenge to the revocation of SHR status may be challenged in a habeas corpus proceeding, cf. Brennan v. Cunningham, 813 F.2d 1, 4 (1st Cir.1987) (challenge to revocation of work release). Third, we assume, without deciding, that the adverse state court decision in Asherman's habeas corpus challenge to the termination of his SHR status has no res judicata effect upon his pending federal court habeas challenge.

The Supreme Court has issued a series of decisions that guides our resolution of this appeal. First, the Court has made clear that a person cannot be compelled to be a witness against himself in a criminal proceeding nor forced "to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316, 322, 38 L.Ed.2d 274 (1973). Thus, on the assumptions we have made for purposes of this case, Asherman could not have been ordered to answer questions concerning his crime, by which we mean only that he could not have been subjected to a court order directing him to answer and punished with contempt penalties for refusing to obey such an order. Nor could he have been ordered to waive his self-incrimination privilege. See Gardner v. Broderick, 392 U.S. 273, 279, 88 S.Ct. 1913, 1916-17, 20 L.Ed.2d 1082 (1968).

Second, the Court has ruled that in some circumstances adverse state action may not be taken as a consequence of a person's invocation of the self-incrimination privilege. See Slochower v. Board of Higher Education, 350 U.S. 551, 558-59, 76 S.Ct. 637, 641-42, 100 L.Ed. 692 (1956). Without endeavoring to describe the full range of such circumstances, we may observe that a state may not take adverse action in response to an invocation of the privilege in response to questions not reasonably related to the valid exercise of state authority. Slochower well illustrates the point. A city was prevented from terminating the services of a college teacher in response to the teacher's assertion of his self-incrimination privilege while being questioned by a congressional committee.

Third, the Court has ruled that in some circumstances adverse state action may be taken upon a person's refusal to answer questions pertinent to the exercise of state administrative authority. See Uniformed Sanitation Men Ass'n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, supra. Since these two decisions are especially pertinent to the pending appeal, we examine them in some detail.

Both decisions concern municipal employees who were questioned about corruption in their agencies. The police officer in Gardner was brought before a grand jury and asked to sign a waiver of the immunity that otherwise might have been conferred under state law had he testified. See N.Y.Penal Law § 2447 (1953), repealed by N.Y.Penal Law § 500.05 (McKinney 1967). He was discharged from public employment for his refusal to waive immunity. The fifteen sanitation workers in Uniformed Sanitation Men were brought before a hearing conducted by a commissioner of investigations. They were told that their answers could be used against them in a court of law. 392 U.S. at 283 n. 4, 88 S.Ct. at 1919 n. 4. Three answered the questions and were subsequently brought before a grand jury and asked to sign waivers of immunity. Twelve refused to answer, invoking their privilege against self-incrimination. All fifteen were discharged.

The Supreme Court held all the discharges to be unconstitutional. In both decisions, the Court was careful to distinguish between permissible questioning and impermissible impairment of constitutional rights. In Gardner, the Court said:

[The police officer] was discharged from office, not for failure to answer relevant questions about his official duties, but for refusal to waive a constitutional right.... He was dismissed solely for his refusal to waive the immunity to which he is entitled if he is required to testify despite his constitutional privilege.

392 U.S. at 278, 88 S.Ct. at 1916. In Sanitation Men, the Court said:

"[The sanitation workers] were not discharged merely for refusal to account for their conduct as employees of the city. They were dismissed for invoking and refusing to waive their constitutional right against...