Ex parte Laird, 48234
| Decision Date | 16 December 1974 |
| Docket Number | No. 48234,48234 |
| Parties | Ex parte Elizabeth LAIRD. |
| Court | Mississippi Supreme Court |
Joe Ragland, Richard T. Bennett, Jackson, for appellant.
A. F. Summer, Atty. Gen. by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.
On a former day of this term we affirmed the denial of a petition for writ of habeas corpus, but, on petition for rehearing, we withdraw the former opinion and substitute the following as the opinion of the Court.
Petitioner filed a petition for a writ of habeas corpus in the County Court of the First Judicial District of Hinds County contending that she was denied due process in a preliminary hearing for the purpose of determining whether there was probable cause to return her to the penitentiary for a revocation of parole hearing. Petitioner contends that she was denied the right to defend herself by counsel of her choice at the preliminary hearing, thus denying her due process.
Petitioner was granted a parole from the penitentiary, and on April 13, 1974 was arrested for violation of the conditions of her parole. On this date she was given written notice setting a preliminary hearing for the purpose of making an administrative determination whether petitioner should be returned to the penitentiary pending a revocation of parole hearing by the Probation and Parole Board. The notice given petitioner stated that she would have the right to request the Parole Board to be assisted by counsel in the administrative proceedings, such request to be made in writing showing the need for such assistance. The petitioner did not request counsel in writing and when the preliminary hearing was conducted the hearing officer refused to let her counsel, who was present, participate in the hearing.
The rules of the Probation and Parole Board governing preliminary hearings were not presented to the court on the original presentation of this case. Paragraph 3(c) of the rules of the Probation and Parole Board grants to each parolee an absolute right to retain counsel for a preliminary hearing, but the notice of April 13, 1974 to petitioner qualified and limited that right.
We hold that the hearing officer violated the rules of the Probation and Parole Board when he did not permit the attorney who appeared for petitioner to participate in the proceedings; therefore, the decision of the hearing officer was null and void.
The question of the duty of the State to provide private counsel for a parolee on a preliminary hearing is not before the Court because petitioner appeared with counsel of her own choosing. We note, however, that the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) held that although a state is not under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases, indigent parolees may be entitled to appointed counsel under some circumstances. The Court stated:
Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a...
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Riely v. State
...2159, 68 L.Ed.2d 640, 649 (1981) (citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)); see Ex parte Laird, 305 So.2d 357, 358 (1974) (discussing Gagnon ). Whether probationers have a right to counsel must be answered "on a case-by-case basis in the exercise of a ......
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Mississippi State Probation and Parole Bd. v. Howell
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