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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.
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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.
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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
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