Fleming v. Tate, 9217.

• Decision Date: 28 June 1946
• Docket Number: No. 9217.,9217.
• Citation: 156 F.2d 848,81 US App. DC 205
• Parties: FLEMING, Acting General Superintendent of D. C. Penal Institutions, v. TATE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

81 US App. DC 205, 156 F.2d 848 (1946)

FLEMING, Acting General Superintendent of D. C. Penal Institutions, v. TATE.

No. 9217.

United States Court of Appeals District of Columbia.

Argued June 3, 1946.

Decided June 28, 1946.

Mr. Sidney S. Sachs, Assistant United States Attorney, of Washington, D.C., with whom Mr. Edward M. Curran, United States Attorney, and Mr. A. E. Gottschall, Attorney, Department of Justice, both of Washington, D. C., were on the brief, for appellant. Mr. Ray L. Jenkins, Assistant United States Attorney, of Washington, D. C., also entered an appearance for appellant.

Mr. John P. Mullen, of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and WILBUR K. MILLER and PRETTYMAN, Associate Justices.

PRETTYMAN, Associate Justice.

Appellee Tate was convicted in 1927 on charges of housebreaking and larceny. He was sentenced to 40 years' imprisonment. He served 16 years and was paroled in 1943. One of the conditions of the parole was that he not leave the District of Columbia without written approval of the local Board of Indeterminate Sentence and Parole. Two years later the Board was informed that he had left the District; a warrant was issued for his arrest; he was taken before the Board, was returned to prison for violation of his parole, and began serving his unexpired sentence of 24 years.

When Tate was arrested, counsel who had theretofore represented him applied for leave to appear in his behalf at the hearing, and Tate's employer requested permission to testify. These requests were denied because the Board does not permit counsel or witnesses to appear at these hearings. Tate petitioned for a writ of habeas corpus. The District Court held a hearing upon the petition and the return thereto. The able justice who heard the matter wrote a careful opinion and issued the writ, without prejudice to subsequent proceedings for the revocation of the parole in conformity with the statute. This appeal followed.

We agree with the opinion and judgment of the District Court.

The question is one of statutory construction. No constitutional right is involved, as parole is a matter of grace.¹ The statute² requires that after a paroled prisoner is arrested for violation of his parole, he "shall be given an opportunity to appear before said Board". The District Court held that this provision means an effective appearance, and thus necessarily means the presence of counsel if the prisoner so elects, and the receipt of testimony if he has testimony to present.

The limits of this decision must be carefully and emphatically stated. Appellant urges that the presence of counsel would convert the hearing into a legal battle; that the reasoning of the court would apply also to applications for parole; that the hearings would be prolonged; that it would follow that if the prisoner had no counsel an attorney would have to be assigned him; that the rules of evidence would be invoked; that the presence of a prosecutor would be necessary; and that "Without doubt there are other procedural problems, presently unforeseen, which would rear their heads to plague the parole system." Not one of these results is to be understood as following from our holding in this case. The same situation does not exist in applications for parole. The presence of counsel does not mean that he may take over control of the proceeding. The receipt of testimony offered by the prisoner need not be governed by the strict rules of evidence, any more than the application of those rules is necessary in many informal administrative hearings. The presence of counsel and the receipt of testimony offered by the prisoner need not prolong the hearing beyond the time necessary in any event for the Board to ascertain the facts upon which it is about to act. It is not necessary that counsel be assigned, as the requirement here is not jurisdictional.³ The statute requires an "opportunity" to appear, no more. The participation by counsel in a proceeding such as this need be no greater than is necessary to insure, to the Board as well as to the parolee, that the Board is accurately informed from the parolee's standpoint before it acts, and the permitted presentation of testimony by the parolee need be no greater than is necessary for the same purpose. But we believe that these minima are essential to a valid appearance before the Board as required by the statute.

Not the slightest relaxation of supervisory control over parolees need result. The presence of counsel is meant as a measure of protection to the prisoner; it should not be permitted to become a measure of embarrassment to the tribunal. The receipt of testimony offered by the prisoner is one of the fundamentals of fair play, so frequently asserted by the courts. These two features, the presence of counsel and the receipt of evidence, are the basic characteristics of our whole system of administration of justice. To say that they cause the degradation of a proceeding into an uncontrolled melee is to deny fundamentals.

In a proceeding for revocation of a parole in a case such as that at bar, the prisoner is accused of a specific act which, if committed, is violative of the terms of his parole. Therein lies the vast difference between this hearing and a hearing upon an application for parole. It is urged by appellant that the situation is not different from the infraction of prison rules by an incarcerated prisoner. The difference is that Congress has made no requirement respecting the incarcerated one, but it has made a requirement as to an accused parolee.

What did Congress have in mind when it said that when so accused the parolee "shall be given an opportunity to appear before said Board"? It could not have meant merely his physical presence. Such a statutory requirement must have had a purpose. The only conceivable purpose is that the parolee should be enabled to present whatever he may have to present pertinent to the question raised...