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Probation Case Analysis

By: dmc-admin//February 18, 2004//

Probation Case Analysis

By: dmc-admin//February 18, 2004//

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An interesting question raised by the case is whether or not it will change the standards when a probationer or parolee is not revoked, and the Department subsequently initiates a second revocation hearing based on the same conduct.

In such cases, the law is currently established in State ex rel. Leroy v. DHSS, 329 N.W.2d 229, 110 Wis.2d 291 (Ct.App.1992).

Revocation proceedings were instituted against Leroy based on allegations of stabbing another man. The ALJ decided that the evidence was insufficient and the Division of Hearings and Appeals affirmed. Subsequently, Leroy was convicted in circuit court of injury by conduct regardless of life for the same conduct.

Revocation proceedings were then reinitiated, with the new evidence of a criminal conviction, and Leroy was revoked.

On appeal, the court held that it would violate due process if the State could just “shore up” the record with additional evidence, but a subsequent hearing could be held based on newly discovered evidence. Id., 329 N.W.2d at 231-232.

The court of appeals upheld Leroy’s revocation, finding due process was satisfied, even though the only additional evidence was a certified copy of conviction.

The decision in Leroy predates State v. Bembenek, 140 Wis.2d 248, 409 N.W.2d 432 (Ct.App.1987), and until the case at bar, no court has since discussed newly discovered evidence in the revocation context.

In Leroy, the State did not seek to reopen the first proceeding, but merely initiated a new one. Arguably, however, the Bembenek standards should be applicable, for both involve a losing party seeking a second bite at the apple based on newly discovered evidence.

The question then becomes, applying the Bembenek factors, is a criminal conviction based on the same conduct still sufficient.

Obviously, a subsequent criminal conviction would not have come to the department’s knowledge until after the hearing, and the department could not have beennegligent in discovering it.

Furthermore, the evidence is material and it is reasonably probable that a different result would be reached at a new hearing, because a judgment of conviction is all that is necessary to prove a probation or parole violation. Rule number one for everyone on probation or parole is “You shall avoid all conduct which is in violation of federal or state statute…”

A question would arise whether a criminal conviction is merely cumulative evidence.

If the conviction is the result of a guilty plea, then it can not be cumulative; the probationer’s admission of guilt would clearly be new and noncumulative evidence.

If the conviction is the result of a trial, however, it could be argued that the conviction is merely a cumulative affirmation of the testimony of the government’s witnesses. But, in a revocation proceeding, a criminal conviction is evidence itself, and thus, arguably can never be considered cumulative.

Arguably, however, applying Bembenek in this fashion to the government in probation cases would create a one-sided anomaly, because only probationers would actually have to show they were not negligent.

Here, when applying the second factor, the court determined that it should be determined at an evidentiary hearing whether Booker was negligent in not discovering the medical evidence earlier.

However, as noted above, a criminal conviction is evidence itself, and the DOC can therefore never be negligent for not discovering it, even if it was grossly negligent in failing to present whatever evidence it did have at the first revocation hearing.

For Bembenek to be evenhandedly applied to revocation proceedings, it is arguable that the DOC should have to show it was not negligent in presenting evidence at the original revocation proceeding.

A second interesting aspect of the case is the procedure upon remand.

The court remanded the case to the Division of Hearings and Appeals for an evidentiary hearing. However, the Division does not hold evidentiary hearings; it reviews records created by ALJs and reads briefs. So, presumably, an ALJ will have to be appointed to hold the evidentiary hearing, subject to DHA review. The Division would be wise to make sure they are all very familiar with this case.

The third interesting question of this case, and possibly the most relevant of all, is how a probationer is supposed to prove lack of negligence in seeking to discover evidence before the revocation hearing.

Links

Wisconsin Court of Appeals

Related Article

Revoked probationer can reopen proceedings

The case at bar is a fine example. To revoke Booker’s probation, the DOC needed only to prove battery, but the State charged him with substantial battery, requiring proof of injuries exceeding those found in an ordinary fist fight. Booker would therefore have had little incentive to quickly obtain the medical records before the revocation hearing.

Furthermore, Pursuant to Wis. Admin. Code HA 2.05(1)(d), the DOC is not required to provide a probationer with “confidential” evidence (which would encompass the alleged victim’s medical records), and, in practice, a person in Booker’s shoes usually would not receive such records from the prosecutor in the criminal case until after the revocation hearing.

Given the relatively short amount of time between appointment of counsel for probationers and the revocation hearing, the only realistic way Booker could have obtained Marshall’s medical records prior to the hearing would have been to adjourn it — repeatedly.

Accordingly, for the Bembenek factors to be applied both fairly and meaningfully in the revocation context, the second factor — lack of negligence in discovering the newly discovered evidence — must be considered very liberally.

Click here for Main Story.

David Ziemer can be reached by email.

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