WILLIAM COBURN v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3306-09T4

WILLIAM COBURN,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

______________________

April 25, 2011

Submitted March 28, 2011 Decided

Before Judges Reisner and Ostrer.

On appeal from the New Jersey Department of Corrections.

William Coburn, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Daniel M. Vannella, Deputy Attorney General, on the brief).

PER CURIAM

This is a prison inmate's appeal from a disciplinary decision. After our remand in January 2010, the New Jersey State Prison Administrator affirmed a 2003 hearing officer's finding that the inmate, William Coburn, committed an assault on a corrections officer. We had remanded the matter upon the request of the Department of Corrections (Department) itself. We ordered the agency to conduct a "new hearing" to consider substantial relevant evidence discovered after the 2003 hearing. However, instead of conducting a new testimonial hearing consistent with our remand order, the agency reviewed, and then affirmed the original hearing officer's 2003 decision.

Therefore, we are compelled to remand this matter again for a new testimonial hearing, at which time the inmate will be able to confront agency witnesses with the new evidence. We also find that the agency should, consistent with its rules and our case law, grant the inmate's request to submit to a polygraph test regarding the charges against him. Finally, we direct that the hearing be conducted and reviewed by persons not associated with the previous proceedings.

A brief review of the facts and history of this case will make it clear why a remand for a new testimonial hearing was warranted. On July 29, 2003, Coburn was incarcerated at New Jersey State Prison in Trenton, serving a 1985 sentence of life imprisonment, with a thirty-year period of parole ineligibility, for murder and other crimes. Coburn was sixty-two years old at the time, and had a positive prison record. He was assigned as the prison's laundry mechanic, a coveted job with significant responsibility.

According to the charges, Coburn slashed senior corrections officer Samuel Rush with a razor. Rush alleged that he had entered the laundry maintenance area because Coburn allegedly stated that he needed to shut down the laundry. Rush stated that he determined that the laundry did not need to be shut down, and then confronted Coburn, to determine "why he lied." Coburn then allegedly slashed him. Rush had a laceration on the left side of his neck that was between three and five centimeters long, and 1/8 to 1/4 of an inch deep.

Coburn denied assaulting Rush. He claimed that Rush falsely accused him to retaliate against him for refusing to corroborate a false workplace injury claim by Rush. Coburn argued that he was operating machinery a distance away from the place where Rush claimed he was assaulted. Coburn alleged that after Rush left the laundry area bleeding, he was himself assaulted by corrections officers.

After a hearing on September 2, 2003, a hearing officer found Coburn guilty of attempting to kill Rush, assault, weapon possession and disruptive conduct. The hearing officer denied Coburn's request for a polygraph, on the grounds that it could not be performed while Coburn was wearing a neck brace. The prison's assistant superintendent affirmed the hearing officer's decision on September 5, 2003. As a result of the decision, Coburn was stripped of commutation credits, removed from his laundry job, and placed in administrative segregation.

In August 2004, a grand jury in Mercer County returned an indictment charging Coburn with: multiple counts of aggravated assault, second and third degree; unlawful possession of a weapon; possession of a weapon for an unlawful purpose; and being a certain person not to possess a weapon. The defense conducted an extensive pre-trial investigation, discovering evidence that raised significant questions about Rush's credibility, enhanced Coburn's credibility, and tended to support Coburn's allegation of retaliation. After defense counsel presented to the State the results of its pre-trial investigation, the State moved to dismiss the indictment in its entirety. Judge Maryann K. Bielamowicz granted the motion May 1, 2006.

The defense alleged that Rush had filed multiple workplace injury claims, and raised questions about their truthfulness. According to defense claims, during periods when Rush was allegedly incapable of working for the Department, he held various private sector jobs. The defense also presented evidence of multiple bankruptcy filings by Rush in which he allegedly misrepresented his income in order to discharge significant debts.

A defense investigator interviewed a fellow corrections officer who also raised doubts about some of Rush's workplace injury claims. The same officer confirmed that Rush had made unsupported claims against Coburn, tried to get Coburn in trouble, and was intent on getting Coburn fired from his laundry job. By contrast, the officer reported that Coburn had no history of violence at the institution, performed his laundry job well, and did not disobey his orders. This evidence tended to support Coburn's claim that Rush wanted to retaliate against him because Coburn was unwilling to substantiate a false claim of workplace injury.

As for the alleged assault itself, the fellow officer stated that he was in the vicinity when the incident occurred. He heard Coburn operating his drill some distance away from where Rush claimed he was cut. That also tended to undermine Rush's claims. A defense investigator interviewed two other inmates, who reported the same thing.

Lastly, a polygraph examiner for the Office of the Public Defender (OPD) administered a polygraph examination to Coburn on February 14, 2005. The examiner opined that Coburn was being truthful when he denied cutting Rush, noting that the computer analysis reported a finding of "probable no deception indicated."

Thereafter, in light of the dismissal and the evidence that led to it, Coburn's attorney in the Mercer County criminal case requested, in a submission dated June 6, 2006, that the agency reverse the 2003 finding and rescind the disciplinary sanctions that were imposed. The agency ultimately declined and Coburn filed his first appeal to this court. While his appeal was pending, the Department asked this court to remand the matter to the agency to permit it to reconsider. Coburn opposed the motion, arguing that the agency would not impartially consider the record. We granted the motion, and, mindful of the delays in this case, ordered on January 15, 2010 that a "new hearing" be completed in forty-five days.

The agency did not conduct a testimonial hearing. Instead, the prison superintendent reviewed the documentary record prepared before the 2003 hearing, and the hearing officer's notations, and reaffirmed the original hearing officer's findings. The superintendent addressed the county prosecutor's decision to seek dismissal of the indictment. "The Institutional Disciplinary Courtline process is not held to the same standard as a criminal proceeding, nor is the evidence presented during the course of an Institutional Disciplinary Courtline Process required to meet the same standard as in a Criminal Court of Law." However, the superintendent did not expressly address Coburn's 2005 polygraph examination, the alleged false workplace injury claims of Rush, the interview of Rush's fellow officer, or the evidence that Coburn was operating his drill away from the place where Rush claimed he was cut. As for Coburn's assertion that Rush fabricated the charge, the superintendent found it highly implausible that an officer would cut himself in order to falsely accuse an inmate.

This appeal followed.

We reverse and remand for a new hearing. We need not engage in an extended discussion to justify a remand, although the facts recited above make it apparent that a rehearing was and is appropriate to explore newly discovered evidence that raises significant questions about Rush's credibility, and bolsters Coburn's credibility. This court, upon the Department's motion, remanded the case. We ordered a "new hearing." That is the law of the case. In re Reg'l Contribution Agreement, 418 N.J. Super. 94, 101 (App. Div. 2011) (stating that remand instructions are the law of the case).

The agency did not comply. A desktop review of the paper record, as was apparently conducted here, simply did not constitute a "new hearing." See N.J.A.C. 10A:4-9 (describing the formalities of disciplinary hearings, including the inmate's right of confrontation and cross-examination, and opportunity to call witnesses and present evidence); N.J.A.C. 10A:4-11.6 (requiring the inmate "be accorded all procedural rights applicable to a disciplinary hearing" when a rehearing is required). An appellate court's directions on remand are binding on an administrative agency. In re Reg'l Contribution Agreement, supra, 418 N.J. Super. at 100-01; Special Care of N.J., Inc. v. Bd. of Review, 327 N.J. Super. 197, 204 (App. Div.), certif. denied, 164 N.J. 190 (2000).

Consequently, we remand again, with specific instructions. Coburn shall be entitled to confront Rush with the evidence obtained after the 2003 hearing, including evidence of the allegedly false workplace injury claims. A hearing officer shall assess Rush's credibility anew, in light of that confrontation. Coburn shall be able to obtain the testimony of those persons interviewed by the OPD investigator, including the testimony of the fellow corrections officer. Coburn shall also be provided a counsel substitute. These procedural safeguards are consistent with our case law and the applicable administrative regulations. McDonald v. Pinchak, 139 N.J. 188, 196-98 (1995); Avant v. Clifford, 67 N.J. 496, 528-30 (1975); N.J.A.C. 10A:4-9.12 (right to assistance by a counsel substitute); N.J.A.C. 10A:4-9.13 (right to call witnesses and present evidence); N.J.A.C. 10A:4-9.14 (right to confront and cross-examine witnesses).

Coburn should also be able to call as a witness the OPD polygraph examiner, if available. In addition, the Department should afford Coburn the opportunity to submit to another polygraph examination by a departmental examiner. The only reason presented for denying one in 2003 was that Coburn was wearing a neck brace at the time.

We find no basis now for the Department to deny a polygraph examination in this case. A prison administrator or designee may request a polygraph examination when "there are issues of credibility regarding serious incidents or allegations which may result in a disciplinary charge; or . . . as part of a reinvestigation of a disciplinary charge, . . . the Administrator is presented with new evidence or finds serious issues of credibility." N.J.A.C. 10A:3-7.1(a)(1), (2). Both circumstances are present in this case.

We have held that an inmate's request for a polygraph "should be granted when there is a serious question of credibility and the denial of the examination would compromise the fundamental fairness of the disciplinary process." Ramirez v. Dep't of Corr., 382 N.J. Super. 18, 20 (App. Div. 2005). The extrinsic evidence obtained by Coburn's OPD investigation raises serious questions about Rush's credibility and about the fundamental fairness of the disciplinary process. Id. at 24 (stating that fundamental fairness may be implicated when there is evidence of "inconsistencies in the [corrections officer's] statements or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate's behalf").

To assure a hearing that is fair and impartial, the hearing should be conducted, and any review made, by personnel who have had no prior involvement in Coburn's case. Cf. Avant v. Clifford, supra, 67 N.J. at 525 (discussing the manifest importance of an impartial hearing tribunal). We also direct that a recording of the hearing be created to assist this court in any further review. We recognize that the Supreme Court has determined that neither procedural due process nor principles of "fairness and rightness" compel a rule requiring recording of all disciplinary hearings. McDonald v. Pinchak, supra, 139 N.J. at 201-02. However, it is not inconsistent with the Court's determination to require the agency, under the specific circumstances of this case, to create a recording of the hearing on remand, to enable us, if necessary, to review the record and the agency's compliance with this court's mandate.

Given the delays that have already occurred, the Department shall conduct the hearing within sixty days, unless Coburn or his counsel substitute requests reasonable adjournments for the purpose of obtaining the presence of essential witnesses or other good cause. We do not retain jurisdiction, however, should the decision on remand result in a third appeal, that appeal shall be accelerated.

Reversed and remanded.