APPENDIX A: Cruz Reynoso's Appeal Regarding the BPT Decision for David Dew

From: Cruz Reynoso UCLA School of Law BOX 951476 Los Angeles CA 90095-1476

To: Chairman of the Board Board of Prison Terms 428 "J" Street, 6th Floor Sacramento CA 95814

March 21, 1997 Dear Mr. Chairman, I represented David Dew (C-67417) at his subsequent parole consideration hearing on September 6, 1996, at the Correctional Training Facility in Soledad. The panel members at that hearing were: Presiding Commissioner Ron Koenig, Commissioner Arthur Van Court, and Deputy Commissioner Conrad Mar. The panel concluded that Mr. Dew was unsuitable for parole. In addition, the panel declined to set a subsequent parole hearing date for three years. On behalf of Mr. Dew, I submit the following administrative appeal. Commission Koenig began by reading his version of the facts into the record. These facts were obtained from the Board report dated April 1996. Deputy Commissioner Mar presided over the portion of the hearing concerned with Mr. Dew's post-conviction factors and psychiatric evaluation. Commissioner Van Court then explored parole plans. Both attorneys were then given the opportunity to make statements. This tactic of reviewing a few carefully chosen pre-committment factors after the attorney's opportunity to question the parole candidate about them, deprives the attorney of the opportunity to clarify inaccuracies obtained from prior reports that may have been equally erroneous. The panel retired to deliberate and found David Dew unsuitable for parole. The finding of unsuitability was based on the brutal nature of the commitment offense, the perceived lack of candor and failure to accept responsibility for the crime, failure to program as requested by previous boards, and psychological factors. Further, the panel determined that a three year denial was appropriate and recommended that the inmate remain disciplinary free, upgrade vocationally and educationally, and continue participating in therapy. The three year denial was not merited. Inmate David Dew has programmed in a consistently positive manner for more than ten years. He entered prison with a fifth grade education and has ...missing... programming are well documented and were previously submitted to the panel of Commissioners at each subsequent parole hearing, including this most recent one. In addition, Mr. Dew's last disciplinary write up occurred on June 13, 1994. The disciplinary was issued for failing to report to work. He has received five other disciplinaries, three of which were non-administrative. They were received in 1984, '85, and '86. They were issued for failure to perform, failure to report to class, and unlawful influence/conduct respectively. There is no indication of violent tendencies. This is particularly noteworthy considering the attack upon his person by an inmate with a ball point pen. After being stabbed, Mr. Dew used only as much strength as was necessary to prevent further harm to himself. He did not fight back or retaliate. His demonstrated ability to deal with a violent environment in a nonviolent manner indicates that he is not a threat to society. It further demonstrates his ability to deal positively with stressful situations and to make rational decisions.

II. The Parole Board's Decision is Unreasonable in View of the Facts and is Legally Insufficient. The Board found Mr. Dew unsuitable for parole, citing the following reasons: 1. The commitment offense was a "brutal" crime and was exacerbated by the fact that the inmate profited from the murder by selling the victim's property. Both the United States Supreme Court and the California Supreme Court have held the descriptive terms "heinous, and atrocious nature of the crime to be unconstitutionally vague and ambiguous. The use of such terms, or similar terms, such as "brutal nature of the crime", illegally circumvents legal authority prohibiting such a basis to deny a prisoner the possibility of parole. Parole shall be granted unless the prisoner would pose an unreasonable risk to society. Simply citing "the heinous and atrocious nature of the crime" or for that matter, the "brutality" of the crime as a basis for denial is meaningless. To allow the Board to impose de facto life without a possibility of parole by utilizing vague and ambiguous terminology unlawfully circumvents the authority of the judiciary. Furthermore, although Mr. Dew has admitted that he attempted to sell the victim's property, he has consistently denied involvement in the actual murder of the victim. He pled guilty to second degree murder pursuant to the felony murder rule. Finally, Commissioner Koenigh continually assets that inmate Dew and his crime partners went to the victim's home with intent to commit robbery and that they arrived wearing gloves and masks. (Transcript at 7, 84). Mr Dew has consistently denied that the intent was to rob the victim. He has steadfastly maintained that the purpose was to retrieve property rightfully belonging to Roy Patton. The reference to gloves and masks is without evidence. Such comments were thoughtfully interjected to prejudice the inmate. 2. The prisoner has been inconsistent in communicating his version of the events, untruthful to the panel, and failed to accept responsibility for the crime. ...missing... hearing in 1993, he immediately signed up on a wait list for dry cleaning. (Transcript at 33). Shortly before he was accepted into the program, Mr. Dew was transferred to CTF Soledad. Upon his arrival, Mr. Dew again placed his name on a waiting list for a trade. Since that time he has been eagerly awaiting admission. (Please see April 1996, Life Prisoner Evaluation Report). The opportunity to be trained in yet another vocation has simply not presented itself. In fact, shortly after January 28, 1996, Mr. Dew's wife provided counsel with a letter expressing concern over the fact that a significant amount of inmates were placed over Mr. Dew on the waiting list for trade school. Mr. Dew indicated that his counselor promised to document the incident in the central file. The Board erred in holding Mr. Dew accountable for events beyond his control. b. Commissioner Koenig was simply mistaken when he stated that "although obtaining his GED in 1990 , [Mr. Dew] has done nothing further in the educational area." (Transcript at 85). When inmate Dew entered the prison system he had a fifth grade education. While in custody, Mr. Dew dedicated himself to studying diligently. In 1990 he did in fact receive his GED. In addition, and contrary to what Commissioner stated, Mr. Dew did pursue a college education as well. He took a class through Chapman University. Unfortunately, the program was discontinued in the midst of Mr. Dew's second quarter. Mr. Dew continues to educate himself by spending time in the prison library studying biographies, self-help books, and inspirational literature. He plans to continue his college education when he can afford to do so. c. Commissioner Koenig referred to, and presumptively relied on the fact that Mr. Dew has chosen not to participate in the Category X Program. (Transcript at 85). According to Title 15 P3363 of the California Administrative Code, an inmate has the right to refuse assignment to a program of diagnosis or treatment without being subject to discipline or other deprivation subject to certain exceptions. Not only does Mr. Dew have the legal right to refuse to participate in the Category X program without retribution from the Board, it is certainly reasonable for him to forgo the option for two reasons. First, the program is administered only in certain prisons, the inmate's institution not being one of them. Therefore, Mr. Dew would have to leave CTF Soledad. The move would have negative effects. Mr. Dew would be removed from the wait list that he is currently on. He is attempting to learn the trade of landscaping in order to meet the board's recommendation that he acquire a vocation. He is currently advised that access to the program will likely take two to three months. Second, Dr. Bakeman who evaluated Mr. Dew for this hearing, clearly concluded that inmate Dew "does not now have a psychiatric condition that would benefit from mental health treatment following his release." (Transcript at 42). This assessment confirms Mr. Dew's opinion that all issues raised by participation in the Cat X program have already been addressed during his four year intensive therapy program at Atascadero. IN light of this finding, it is clear that Mr. Dew has not merely ignored the Board's recommendation, but rather has seriously considered the benefits and determined that they do not outweigh the burden. 4. Psychological Factors. ...missing... 3. Commissioner Mar phrased a question according to Mr. Dew's participation in Narcotics Anonymous in a manner that confused Mr. Dew and prompted him to answer in a manner that was prejudicial. To clarify the issue for the record, Mr. Dew has not participated in Narcotics Anonymous upon his return from Atascadero. However, he has completed 48 months of participation in Narcotics Anonymous at Atascadero. (Copies of certificates documenting attendance at Narcotics Anonymous meetings were attached to the Hearing Brieg). In addition, as Commissioner Mar stated, Mr. Dew has also participated in Alcoholics Anonymous. 4. Commissioner Mar inappropriately questioned Mr. Dew regarding matters of private concern. (Transcript at 31-32). The age of Mr. Dew's wife has no bearing on his suitability for parole. In addition, whether or not Mr. Dew was "intimate" with his wife at Atascadero was an improper inquiry. Such information is irrelevant to determining suitability for parole. 5. The panel referred to the sale of stolen property by Mr. Dew to an "undercover agent." (Transcript at 54). In fact, Mr. Dew sold the items to a civilian who cooperated with the police in order to receive favorable treatment. 6. The panel members exhibited their bias and predetermined decision to deny parole. a. Commissioner Koenigh unfairly and improperly mentioned the use of stocking masks (Transcript at 78), and states gloves and masks were used when inmate Dew and his codefendants entered the victim's house. In reality, the record does not reflect that such items were present at the crime scene or were ever used. Mr. Dew responded that they were not. (Transcript at 7). Such references were intentionally interjected to prejudice the inmate. b. Similarly, the Board relied on the life prisoner evaluation report signed my Mr. Pipkins in questioning Mr. Dew about prior convictions. In reality, Mr. Dew was merely arrested, not convicted, for verbal assault and pimping. c. Additionally, Commissioner Mar confused events and misstated that Mr. Dew was removed from the graphic arts program due to insufficient attendance. (Transcript at 38). The Life-Prisoner Post-Conviction Progress Report dated Jan. 15, 1991, and signed by K. Ecker clearly documents the fact that inmate Dew's clearance was revoked as required by new clearance criteria following the murder of a staff person by an inmate. Through no fault of his own, and certainly not by choice, Mr. Dew was reassigned from printing to laundry. 7. Title 15 P2052 of the California Administrative Code requires that an appeal be filed within 90 days of receipt of written confirmation of the decision. Although the effective date stamped on the transcript is December 23, 1996, Mr. Dew did not receive his copy of the transcript until the first week of February. He received the transcript only after counsel directed him to inquire about the transcript's status. Mr. Dew reports that unbeknownst to him, his counselor had been in possession of the transcript since its release. Therefore, the filing date for this appeal should have been set for 90 days after Mr. Dew received written confirmation of the decision (which would be early May) rather than 90 days from the date stamped. Furthermore, counsel requested ....missing...

 

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