Jackson is currently incarcerated by the Wisconsin Department of Corrections at the Waupun Correctional Institution. He was previously confined at the New Lisbon Correctional Institution ("NLCI"), before being transferred to the Wisconsin Secure Program Facility ("WSPF") on November 13, 2004. The reasons for Jackson's transferare outlined in a detailed conduct report (#1731337), charging him with inciting a riot and group resistance in violation of Wis. Admin. Code DOC §§ 303.18 and 303.20. These charges stemmed from an incident that occurred at NLCI on November 11, 2004, in which several correctional officers were seriously injured during a prison riot.
On January 26, 2005, Jackson appeared for a "due process hearing" along with a "staff advocate" appointed to assist him. At that hearing, the adjustment committee found Jackson guilty of inciting a riot and not guilty of group resistance. As a result, Jackson was placed in "adjustment segregation" for 8 days and "program segregation" for 360 days. The adjustment committee also forfeited 179 days of previously earned credit for good conduct (i.e., good-time credit), which extended Jackson's mandatory release date.
Jackson challenged his disciplinary conviction by filing a petition for certiorari review in Dane County Circuit Court, arguing that he was denied due process. In particular, Jackson argued that (1) he was denied a fair hearing before an impartial decision-maker; (2) he was denied access to exculpatory video evidence; and (3) the evidence presented was insufficient to support his conviction. Rejecting all of these claims, the circuit court affirmed the disciplinary conviction in a written opinion and dismissed Jackson's certiorari petition. See State ex rel. Jackson v. Buchler, Dane County Case No. 05CV1862 (March 10, 2006). On direct appeal, the Wisconsin Court of Appeals affirmed the circuit court's decision in an unpublished opinion. See State ex rel. Jackson v. Buchler, No. 2006AP948 (Dec. 13, 2007). On petition for further review, theWisconsin Supreme Court remanded Jackson's case for in camera review of certain video evidence.
A hearing was held for that purpose before the Dane County Circuit Court following remand. After another round of appeals, the Wisconsin Supreme Court ultimately affirmed the disciplinary conviction in a lengthy, published opinion. See Jackson v. Buchler, 2010 WI 79, 330 Wis. 2d 279, 793 N.W.2d 826 (Dec. 14, 2010). In doing so, the Wisconsin Supreme Court summarized the relevant facts and procedural history of the disciplinary charges, which as the last opinion by a state court bear repeating here:
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.
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.
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.
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 used the alias "Wiz," acted in a leadership position in a gang called the ViceLords. Both indicated that prior to the riot, Jackson met with the inmates and instructed them to assault the guards.1
A conduct report was issued, which cited Jackson for inciting a riot2 and for group resistance.3 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."
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."
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."
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.
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 finished cutting 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.
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 office explained that Jackson did not provide good cause to demonstrate that the additional witnesses could provide essential testimony.4
During his administrative appeals, Jackson asserted that the denial of his request to call these witnesses was a due process violation. However, he has not renewed this argument in the circuit court, the court of appeals, or this court.
Jackson, Piel, and Treadwell testified at the hearing. The two confidential informants did not testify.
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.
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."
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,5 the committee relied on "video" evidence in finding Jackson guilty.
Jackson timely appealed to Warden Buchler.6 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.
Warden Buchler
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