Jackson v. Buchler

• Decision Date: 14 December 2010
• Docket Number: No. 2006AP948.,2006AP948.
• Citation: 793 N.W.2d 826,2010 WI 135,330 Wis.2d 279
• Parties: Darnell JACKSON, Petitioner-Appellant-Petitioner, v. Daniel BUCHLER and Matthew Frank, Respondents-Respondents.
• Court: Wisconsin Supreme Court

330 Wis.2d 279

793 N.W.2d 826

2010 WI 135

Darnell JACKSON, Petitioner-Appellant-Petitioner,

v.Daniel BUCHLER and Matthew Frank, Respondents-Respondents.

No. 2006AP948.

Supreme Court of Wisconsin.

Argued Sept. 15, 2010.

Decided Dec. 14, 2010.

For the petitioner-appellant-petitioner there were briefs by Thomas L. Shriner, Jr., G. Michael Halfenger, Katherine D. Spitz and Foley & Lardner, LLP, Milwaukee,and oral argument by G. Michael Halfenger.

For the respondents-respondents there were briefs by Abigail C.S. Potts, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general, and oral argument by Abigail C.S. Potts.

ANN WALSH BRADLEY, J.

¶ 1 The petitioner, Darnell Jackson, seeks review of an unpublished decisionof the court of appeals affirming an order denying his petition for a writ of certiorari.¹ In a prison disciplinary proceeding, Jackson was found guilty of inciting a riot. He contends that the proceeding violated procedural due process.

¶ 2 Video evidence is the focus of Jackson's initial due process arguments. He asserts that the video footage undermines or contradicts the other evidence considered by the adjustment committee, rendering the evidence of his guilt constitutionally insufficient. Additionally, he contends that the video footage is exculpatory or impeaching evidence, which should have been disclosed to him under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

¶ 3 We determine that the video footage is inconclusive and neither undermines nor contradicts the evidence considered by the adjustment committee. We further conclude that with or without the video footage, there was sufficient evidence of Jackson's guilt. Under the facts presented by this case, we need not and do not determine whether any version of Brady—limited or otherwise—applies to prison disciplinary proceedings.

¶ 4 Additionally, Jackson asserts that his due process right to an impartial decisionmaker was violated because a member of his adjustment committee also had "substantial involvement" in the incident because she participated in the investigative process. Based on this record, we cannot conclude as a matter of law that the committee member's involvement in the incident was "substantial."

¶ 5 Accordingly, we affirm the court of appeals.

I

¶ 6 At approximately 1:40 p.m. on November 11, 2004, several New Lisbon Correctional Institution security guards were attacked and injured by three inmates: Jamie Vest, Bernard Treadwell, and Alvin Kenney. The attack occurred at the A Unit officers' station, which is located between the A Unit Side 1 and Side 2 dayrooms. According to the subsequent investigation, many inmates participated in the assaults by purposefully rushing toward the officers' station and positioning themselves to participate in the riot.

¶ 7 Although the attack itself appears not to have been recorded by security cameras, video footage of the Side 1 and Side 2 dayrooms was used in the investigation. Many inmates were disciplined as a result of their participation in the riot.

¶ 8 At the time of the riot, Darnell Jackson was working in the prison barbershop, which abuts the Side 1 dayroom. There is no evidence or allegation that Jackson directly participated in the riot.

¶ 9 Nevertheless, staff investigators uncovered information implicating Jackson as a leader responsible for inciting the attack. Two inmates who requested confidentiality stated that they had direct personal knowledge of the circumstances which led to the riot. Both stated that Jackson, who usedthe alias "Wiz," acted in a leadership position in a gang called the Vice Lords. Both indicated that prior to the riot, Jackson met with the inmates and instructed them to assault the guards.²

¶ 10 A conduct report was issued, which cited Jackson for inciting a riot ³ and for group resistance.⁴ The conduct report noted: "Tapes from the NLCI A Unit and NLCI exterior cameras from 11/11/04 have been utilized by the investigators of the 11/11/04 riot."

¶ 11 As set forth in the conduct report, the informant referred to as CI# 1 stated in part:

Darnell Jackson is calling it for the Vice Lords and P-Stones. I saw inmate [s] putting their boots and gloves on and I knew something was going to happen. Vest, Treadwell, Darnell Jackson and Alvin Kenney were all huddled up first in the hallway. All the people who assaulted the staff are V.L. and P-Stones (Rangers). I also saw Lipsey and Ward outside in the hallway talking to "Wiz" (AKA Darnell Jackson.) I saw Wiz in the hallway, everybody had on boots and gloves.

The informant referred to as CI# 2 stated in part:

Lipsey (Samuel) was on crutches and came back to the unit from HSU. Lipsey stated to the inmates on the unit that he saw Love being attacked and the guards had him on the ground and were beating him. Treadwell and Vest then went to Whiz (who is first in command) and told him about Love. Whiz was behind the incident. He stated to them, "You guys know what you have to do."

¶ 12 The conduct report concluded that "Jackson is in a leadership position with the Vice Lords, called for the assault to happen, and was talking to the three inmates who assaulted staff seconds before the assault took place." Further, it stated that the confidential informants "are believed to be credible as their statements were obtained separately. Neither inmate had knowledge of the other's statement." It determined that "[t]he statements were consistent with and corroborated one another."

¶ 13 Jackson was provided with a copy of the conduct report and a notice of his right to a hearing. He submitted an affidavit, which asserted that at no time did he talk with Treadwell, Vest, or Kenney, and that he had nothing to do with the attack. He further contended that he is no longer a member of the Vice Lords, that he was never a member of the P-Stones, and that he never acted in a leadership position with those gangs.

¶ 14 According to his affidavit, on the afternoon of the riot Jackson was in the prison barbershop cutting Inmate Piel's hair. He heard a loud commotion and saw inmates gathered around the TV monitor. Jackson contended that he left the shop for 15 seconds to look at the TV monitor, but he could not see what was happening and returned to the shop. After he finishedcutting Piel's hair, Jackson left the shop. At that time, there was a commotion at the sergeant's desk, and he saw Treadwell, Vest, and Kenney swinging their fists and kicking someone. He proceeded towards his cell.

¶ 15 The Security Office granted Jackson's request to present the testimony of two inmates, Larry Piel and Bernard Treadwell. It denied Jackson's request to present the testimony of two additional inmates, Samuel Lipsey and Jamie Vest, and one Department of Corrections (DOC) officer, Captain Harrel. The officeexplained that Jackson did not provide good cause to demonstrate that the additional witnesses could provide essential testimony.⁵

¶ 16 Jackson, Piel, and Treadwell testified at the hearing. The two confidential informants did not testify.

¶ 17 The adjustment committee found Jackson guilty of inciting a riot and not guilty of group resistance. As a result of this disposition, Jackson's release date was extended by 179 days.

¶ 18 Lieutenant Pamela Zank completed form DOC-84, entitled "Disciplinary Hearing: Reasons for Decision and Evidence Relied on," (hereinafter, "Hearing Decision"). As provided in the Hearing Decision, the committee found it "more likely than not inmate Jackson committed the act of inciting a riot." The Hearing Decision explained that the committee "evaluated all the evidence, confidential statements and testimony and reached its conclusion that the statements in the conduct report are correct." It concluded that Jackson's testimony was "less credible" and that "inmate witness testimony [was] not credible."

¶ 19 The Hearing Decision form contained a section for the adjustment committee to set forth the physical evidence it relied upon in reaching its decision.That section provided that among other evidence,⁶ the committee relied on "video" evidence in finding Jackson guilty.

¶ 20 Jackson timely appealed to Warden Buchler.⁷ Among other claims, Jackson contended that Lt. Zank's participation in the hearing violated DOC rules and his due process right to a fair and impartial hearing, and that there was insufficient evidence to establish his guilt. He asserted that Lt. Zank was among the officers who investigated the assault, that she had interviewed Jackson about the incident, and that she asked Jackson to sign a waiver of his hearing rights. Jackson made no claim regarding video evidence.

¶ 21 Warden Buchler affirmed the committee's decision, concluding that there was sufficient evidence to sustain its determination of guilt. He also found that "Lt. Zank did not have substantial involvement in the incident to warrant not being on the hearing committee."

¶ 22 Following the inmate complaint procedures outlined in Wis. Admin. Code Ch. DOC 310, Jackson filed two offender complaints with the institutional complaintexaminer. His first complaint raised issues related to the statements of the confidential informants. That complaint was dismissed. His second complaint asserted that the committee violated Wis. Admin. Code DOC § 303.82(2) ⁸ by permitting Lt. Zank to participate as a member of the adjustment committee. The institutionalcomplaint examiner recommended that the complaint be dismissed, concluding that "Lt. Zank did not have substantial involvement in the investigative process." On review, the corrections complaint examiner found "no procedural error of consequence" and also recommended that the complaint be dismissed. Ultimately, the Secretary of the DOC accepted the recommendation and dismissed Jackson's complaint.

¶ 23 Jackson filed a petition for a writ of certiorari in the circuit court pursuant to Wis. Stat. § 801.02(5).⁹ The petition advanced four arguments for consideration: (1) the...