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October 9, 2009

Personal liability for Texas parole official for ex-convict denying ex con required hearing

Among lots of great new stuff at the always great Grits for Breakfast, Scott notes this remarkable new story from the Austin Statesman headlined "Jury says state officials violated parolees right to hearing." Here are the basics:

An Austin federal jury on Thursday found that two top state parole officials violated the constitutional rights of an ex-convict who was denied a required hearing for 576 days.  Jurors also held Board of Pardon and Paroles Chairman Rissie Owens liable for $21,250 in damages and awarded Curtis Ray Graham attorney's fees that are expected to top $100,000.

The verdict came after an unusually contentious trial presided over by U.S. District Judge Sam Sparks, who in August had declared a mistrial in the case and who earlier this week fined an assistant attorney general for disregarding his warnings about making prejudicial comments in front of jurors.

Graham sued the parole board after he was classified as a sex offender even though he was never convicted of a sex crime.  He was arrested on aggravated rape charges in the 1980s, and parole officials used that as a basis for classifying him as a sex offender five years after he had been released on parole.  Graham alleged he was never allowed to review evidence against him before the parole board made its decision in December 2007, despite several federal court orders requiring such hearings.

It is rare for ex-convicts in Texas to win such legal challenges in state or federal courts. It is almost unheard of for parole officials to be held liable for official omissions. State parole director Stuart Jenkins, a second defendant in the high-profile case, was not held liable.

At a time when several similar lawsuits are pending against state parole officials, attorneys have argued that a win by Graham could force new hearings in perhaps thousands of parole cases in which offenders were classified as sex offenders without proper hearings.  Such a finding can bring more stringent limitations on their freedom.  "This should send a message to the parole board that their arrogance not to change their policy won't work any longer, that constitutional rights matter in how they do their business," said William Habern, a noted parole-law attorney from Riverside who represents Graham.

Perhaps needless to say, I am interested to hear what Supremacy Claus and some other frequent commentors think about this case.

October 9, 2009 at 01:54 PM | Permalink


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Great case man... really interesting to read it...

Posted by: torontto injury lawyer | Oct 9, 2009 3:25:53 PM

When will parole board officials be held liable for releasing back to the community dangerous repeat offenders who do it yet again? We have seen this happen over and over. John Couey (the rapist/killer of Jessica Lunsford) was one sucn parolee. Pillip Girrardi, the kidnapper of 11 year-old Jaycee Duggar, was another (indeed his parole officer visited him occasionally at the property where he built the dungeon but never looked around carefully enough to see that anything was amiss). The list of these people goes on for a good, long time.

The damage caused by these devil-may-care parole officials was horrendous -- incomparably greater than that caused by the officials in the case Doug has noted.

Where's the outrage?

Where's the liablity?

Where's the demand for more cautious standards of release?

Posted by: Bill Otis | Oct 9, 2009 3:27:42 PM

Mr. Bill, where have you been? Why do you think Jessica's Law spread across the nation? Because everyone was so happy? You are right though. They should be libel. Couey begged and begged for treatment and never got any before release. People are outraged that the police and parole officer did not catch Girrardi sooner.

I'd have no problem with victims suing over these broken system cases. Maybe that would work better than Jessica's Law.

But they should be libel too, too, too, not instead, instead, instead. Maybe you and our host could start such a victims right group and help them sue. Seriously. If the government promises perfection and fails, it should be libel.

Posted by: George | Oct 9, 2009 6:45:00 PM

Oops, libel = liable.

Posted by: George | Oct 9, 2009 8:13:03 PM

George --

"Mr. Bill, where have you been?"

In my cave. Where else?

"Couey begged and begged for treatment and never got any before release."

The absence of treatment cannot possibly excuse or mitigate Couey's grotesque behavior. Society has the unqualified right to demand that adults of sound mind refrain from grievously injuring children. Those unwilling or unable to meet this demand belong in prison, where Couey was before the execrable decision to parole him.

"People are outraged that the police and parole officer did not catch Girrardi sooner."

It should never have been up to the police to catch him, since he never should have been paroled to start with. It wasn't as if the parole board didn't know about his past.

"But they should be [liable] too, too, too, not instead, instead, instead. Maybe you and our host could start such a victims right group and help them sue."

I'm a bit over the hill, George. You, on the other hand...

"Seriously. If the government promises perfection and fails, it should be [liable]."

I doubt that the government ever promised perfection, nor should it be held to that impossible standard. And I'm not demanding perfection. I'm asking for reasonably minimal competence, assisted by more exacting standards. If we'd had that, Jessica Lunsford would be alive today.

Posted by: Bill Otis | Oct 9, 2009 11:09:28 PM

Bill Otis,

I find your position here somewhat baffling. You say people who can't control themselves should be in prison. I'm okay with that. Yet you then want to punish that same person after they have been kicked out of prison despite the fact it is already known that they can't control themselves. Can parole be rejected?

Posted by: Soronel Haetir | Oct 10, 2009 12:32:29 AM

"Can parole be rejected?"

Interesting question. I've never heard of a case in which parole has been granted over the objection of the inmate.

Posted by: JC | Oct 10, 2009 12:37:14 AM

I think there is confusion here. The Parole board was held liable because they never held a hearing, not because they got the decision wrong. Bill seems to think that if a hearing had been held this guy would be walking the streets, but there is nothing in the article that offers convincing proof of that. So lets not confuse the issue of how parole boards would be held liable for bad decisions with the question of how parole boards should be held liable for not following constitutionally proscribed procedures. This case is about the latter and not the former.

Posted by: Daniel | Oct 10, 2009 1:09:31 AM

Prof. Berman: Saw this call for an analysis. Working on it. Case is wild. All parties are evil. All suffered an injustice. The parole board has a quasi-judicial function and likely has been granted absolute immunity from any liability whatsoever, by statute or case law. I imagine a reversal on appeal.

It touches on three areas, Constitutional Law, Torts, and Professional Responsibility. There is the law as it should be, and the law as it is.

Posted by: Supremacy Claus | Oct 10, 2009 1:25:04 AM

Soronel Haetir --

I believe parole must be applied for by the inmate. The specific procedures probably vary from state to state. I worked in the federal system, where parole was eliminated by the Sentencing Reform Act 22 years ago, so I make no claim to being an expert, or close to an expert, on the subject. But I believe JC is correct.

Posted by: Bill Otis | Oct 10, 2009 5:12:07 AM

Mr. Bill: "The absence of treatment cannot possibly excuse or mitigate Couey's grotesque behavior."

Who the hell said it did? We are talking about the government's responsibility to protect the public, not an individual's responsibility to be law abiding (a given in any debate in the legal context.)

Your argument was flippant and dismissive. My reply was merely fire with fire. On a serious note, it is possible that if Couey got treatment, Jessica would still be alive. If so, that is just as important as Jessica's Law. Indeed, had Jessica's Law been law on Couey's first offense, he still may have been released and lived next door to Jessica after serving his 25 years. As callus and dehumanizing as prison is, some treatment is common sense, but your argument is that government need do nothing except wait for another crime and conviction because nothing can "excuse or mitigate" recidivism. That is legally correct, but not necessarily the most mindful of public safety.

Posted by: George | Oct 10, 2009 11:57:56 AM

What's absurd is the notion government can protect children from predators, as a column in today's Times seems to make fairly clear.

Put another way, it doesn't matter much whether SOs are locked away forever in dungeon or paroled and prevented from residing, working or worshiping near children. Either way, children will go right on being abused by, as the column noted, a friend's mom, a fellow parishoner at church, a famous film director with vodka and Quaaludes, a famous father (John Phillips), etc. etc. etc.

Hassling ex-cons to within an inch of their lives does little more than foster a false sense of security among worried parents. It might also win headlines for prosecutors and votes for politicians. It does nothing to save kids from trusted acquaintences or relatives on the prowl.

And as people who know about such things keep reminding us, that's who commits most of the sex abuse (people the children know), and only a fraction of it ever gets reported. Educating children about inappropriate adult behavior has always been and will likely remain the best hope to save the kids.

What made me cringe was the implication of the "lots of SOs will demand hearings if Graham wins" comment, namely that, yet again, reluctance to inconvenience the authorities or add to their heavy workloads should trump constitutional procedural safeguards for citizens accused of crimes...or ex-cons who will be branded as sex-offenders without the benefit of the hearings to which they are entitled.

Posted by: John K | Oct 10, 2009 4:16:09 PM

Ex Parte, Young et al. (1908) is a tiny island of justice and government accountability in a Pacific of lawyer criminal cult self-dealt immunity.


I would appreciate it if law students and former law students would say whether it was carefully covered in their Constitutional Law class. I bet it was not covered, or was superficially covered. For anyone who loves freedom, it is worth learning its jurisprudence on one's own. There is pressure from the CCE to repeal it by statute, precluding this tiny accountability loophole of freedom.

It creates a fictional go around the Eleventh Amendment, stating an official can act on his own, and not as part of his official duty, and can get sued for violating the Fourteenth Amendment. One assumes that a later Amendment overrides an earlier Amendment. Perhaps, that is true, but not when it comes to accountability of the CCE running the three branches of government. Young precludes access to the state treasury. When fictitious doctrines affect the CCE, there is an outcry. The Eleventh Amendment was passed by thievin' deadbeat states seeking to evade legal debt. One hundred years later, the CCE hierarchy ignored the clear language of the Eleventh Amendment precluding lawsuit by citizens outside the state, and extended the immunity to the citizens of a state. Ex Parte Young is a tiny redress of this self-dealing injustice.

The Parole Board defendants claimed absolute immunity of their quasi-judicial decisions. The judge said, their decision were not in question, but their administrative effectiveness, of taking up the application of the plaintiff. Such administrative task have only qualified immunity. Qualified immunity was denied because the plaintiff was denied a mandatory evaluation, and was excluded from a hearing. The failure to state a claim motion was also denied because of the specificity of the allegations of the violations of due process.

The defendants did not help their side by failing to show up for a hearing on the motion and kinda defaulted. I would have shown up before any judge named Sparks.

That is the law as it is.

Posted by: Supremacy Claus | Oct 10, 2009 6:51:36 PM

Can an Amendment have legal validity if its enactment constituted a crime? The Eleventh Amendment was passed to rip off debtors, and to cancel a judgment against a state by its debtor.

What is the validity of a legal doctrine that is justified by a psychotic delusion, and that violates the Establishment Clause by its religious content? Sovereign immunity is not recognized in all nations. It is justified by the Sovereign's speaking with the voice of God, made up bullshit from a priest/judge.

How can such Medieval garbage persist in our secular nation? It serves the aims of the CCE that controls the three branches of government. Despite this exceptional case (which will be reversed on appeal), only violence will pry them out of that power. It should come by mass simultaneous arrest of the 15,000 strong hierarchy of this criminal cult, fair trials for an hour, and summary executions in the basement of the courthouse, immediately.

Beyond the inherent nuttiness and illegality of self-dealt lawyer immunities, liability shrinks the entire enterprise and immunity grows the sector of the economy. This puts stealthy industrial planning in the hands of ignoramuses on the bench. These incompetents get to decide the direction of our entire economy. This is Communism by the state controlling winners and losers in the economy. These Communists must be stopped at all costs before they take our nation under economically.

When productive entities are faces with continual lawsuits in the hundred or thousands, forever, having a privileged class of immune lawyers justifies lynch mob attacks. Torts is a substitute for violence. Violence against anyone immune has full moral and intellectual justification.

All government functionaries should be subjected to full tort liability. Much of what government does is violent. It should be forced to do it against the proper person, after proper consideration. When it injures innocent people, government should pay for its carelessness. They should all carry liability insurance. They should be made to pay when they deviate from professional standards of due care in their field. Lawyers filing frivolous, retaliatory or harassing lawsuits should lose their litigation privilege, and be sued by the innocent government worker. Pro se litigants should post bond returned if their claim gets past motions to dismiss.

Judges are not too busy. They are lazy, worthless, slow moving government worker incompetents, slacking. They do so have time to be sued, far more than the ordinary welder.

This case is a small step in the right direction, although as usual, the lawyer and the journalists are promoting the interest of an evil criminal. If he had been innocent, his story would not have been posted.

Posted by: Supremacy Claus | Oct 10, 2009 8:06:27 PM

If I were the district attorney, no judge would be allowed to abuse me that way. I would demand recusal. Failing that, I would demand removal by the administrative judge. Failing that, I would file immediate ethics charges, then demand recusal. Next, I would sue the judge and demand total e-discovery be done. This would not be a frivolous lawsuit, since it would seek to end the unbearable injustice of self-dealt, judge immunity. These are lazy, careless, incompetent, bought off evil people. The judge is a biased criminal lover, and obviously a sexist pig. I would sick NOW on his residence, ask them to have all their members call him to protest his biased treatment of a female lawyer. If she is black, I would call the Reverend Al Sharpton.

Never live alone in uncertainty. Always make the cult criminal pay a price. When filing ethics complaints, file one per unprofessional utterance, so there are hundreds, and the swine dies under investigation.

Posted by: Supremacy Claus | Oct 10, 2009 11:33:30 PM

The victims of the plaintiff should take care of him themselves. The lawyer is protecting him. There is no justice for victims except that which they take themselves. They should take care of his lawyer too. Kick his ass, see how he likes being a crime victim. He is lower than a mad dog, and deserves no human consideration. To deter. Where there is no justice, self-help has full moral and intellectual justification. Indeed, it is a duty to our civilization to resist the self-dealing of the criminal cult enterprise.

Now that he is making money, this criminal lawyer client should be sued, at the very least by his victims. Under no circumstance should he enjoy his wrongful wealth for even one day.

Posted by: Supremacy Claus | Oct 11, 2009 12:00:52 AM

Assume the verdict is upheld, and that is even a proper, moral, and just verdict. A statute should be enacted to codify common law policy of not rewarding criminality with a civil verdict. He was, after all, on parole after a conviction.

That statute means the payment should be held in trust. The creditors of the criminal should be allowed to apply for reimbursement of the cost of crime. These include crime victims, unpaid health providers of the criminal and of the victims, the prison for its costs of housing, and health care, the courts that tried him, the parole board itself for its services. His lawyer fees should be thrown into the trust fund, and his lawyer should apply like everyone else. The idea the lawyer gets paid first, and the crumbs go to far more compelling creditors is outrageous.

Posted by: Supremacy Claus | Oct 11, 2009 10:47:02 AM

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