Darren Chaker thinks this is an interesting twist to keeping
confidential informants, well, confidential. In Ochoa v. Superior Court (2011) 199 Cal.App.4th 1274 [132 Cal.Rptr.3d 233] a parole proceeding, the warden
may decline to disclose the identity of a prison informant against the inmate if
there is a valid state interest in keeping the informant's identity
confidential. Glasgow was convicted of first degree murder in 1980 and
sentenced to state prison for thirty years to life.
In 2010, the Board of
Parole Hearings (Board) found him suitable for parole but the Governor revsered
the decision, based, in part, on confidential information that Glasgow sold his
prescribed pain medication to other inmates. Glasgow challenged the decision in
a writ action and the superior court ordered disclosure of the confidential
information or reconsideration of parole without the information. The appellate
court issued a peremptory writ vacating the order.
An inmate seeking parole
does not have the same minimum due process rights as the parolee in a Morrissey
hearing (Morrissey v. Brewer (1972) 408 U.S. 471.) Instead, the rights of an
inmate seeking parole are considered on a case by case basis, with the state's
interests weighed against those of the inmates. For security and safety, the
warden may refuse to disclose confidential information (Evid. Code, sec. 1040).
If a claim of privilege is made, the court may require an in camera hearing to
determine if the information is privileged and if it is, it may not be
disclosed. Here, the superior court, in an in camera hearing, determined that
the confidential documents were relevant and reliable, allowing the warden to
exert non disclosure under section 1040. However, the appellate court concluded
that an in camera hearing with the warden must now be held to determine how
much of the confidential information could be disclosed without disclosing the
informant's identity, such that Glasgow's rights to a fair parole determination
can be balanced with the state’s right of nondisclosure.
© 2011 Darren Chaker. All Rights Reserved.
