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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  June 9, 2007
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Defending Due Process Means Defending Paris Too

It does not appear that the minimum requirements for parole revocation were met in Paris Hilton's house arrest revocation hearing and it is indisputable that Paris should not be victimized by a jurisdictional dispute between the sentencing judge and the Sheriff.

I don't love Paris (Hilton), even in the spring, but I do love the Constitution and loathe discrimination even against the wealthy. That means defending Paris against judicial abuse(despite my disapproval of her life style), just as it meant defending members of the 2005-2006 Duke University Men's Lacrosse Team against abuse by a false accuser, the media, Duke University and the criminal justice system in Durham County, North Carolina (despite my disapproval of stripper parties).

The Los Angeles County Sheriff chose to send Paris home from jail with an ankle bracelet to continue her incarceration there, apparently for a medical reason.

The prosecutor and the judge were upset. The prosecutor immediately moved to have Paris returned to jail, and the next day the judge held a hearing and ordered her returned there.

Was that judge's order arbitrary?

I suspect so.

In Morrissey v. Brewer, 408 U.S. 471 (1972), the United States Supreme Court held that although parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, a parolee's liberty involves significant values within the protection of the Due Process Clause of the Fourteenth Amendment, and termination of that liberty requires an informal hearing to give assurance that the finding of a parole violation is based on verified facts to support the revocation.

The Supreme Court: "[T]he liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others. It is hardly useful any longer to try to deal with this problem in terms of whether the parolee's liberty is a 'right' or a 'privilege.' By whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its termination calls for some orderly process, however informal."

Does "house arrest" (which beats jail, especially when the house is the Hilton mansion include "many of the core values of unqualified liberty"?

Does its termination "inflict[] a 'grievous loss' on the person under house arrest and often on others"? (Reports of Paris Hilton's reaction to being ordered back to jail suggest the answer is yes.)

If Paris Hilton's interest in "house arrest" is NOT "valuable," then why did it attract so much attention?

Was due process respected in the termination of Paris Hilton's house arrest and return to jail?

That depends upon what process was due.

I have doubt.

Here's what the Supreme Court said due process required in order to terminate parole:

"Turning to the question what process is due, we find that the State's interests are several. The State has found the parolee guilty of a crime against the people. That finding justifies imposing extensive restrictions on the individual's liberty. Release of the parolee before the end of his prison sentence is made with the recognition that with many prisoners there is a risk that they will not be able to live in society without committing additional antisocial acts. Given the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.

"Yet, the State has no interest in revoking parole without some informal procedural guarantees. Although the parolee is often formally described as being 'in custody,' the argument cannot even be made here that summary treatment is necessary as it may be with respect to controlling a large group of potentially disruptive prisoners in actual custody. Nor are we persuaded by the argument that revocation is so totally a discretionary matter that some form of hearing would be administratively intolerable. A simple factual hearing will not interfere with the exercise of discretion. Serious studies have suggested that fair treatment on parole revocation will not result in fewer grants of parole."

The Supreme Court explained that a parole and the parole's family are not the only ones interested in the parole receiving due process: "The parolee is not the only one who has a stake in his conditional liberty. Society has a stake in whatever may be the chance of restoring him to normal and useful life within the law. Society thus has an interest in not having parole revoked because of erroneous information or because of an erroneous evaluation of the need to revoke parole, given the breach of parole conditions.... And society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness."

If house arrest is sufficiently comparable to parole, then Paris should have been accorded due process.

The Supreme Court ruled: "[D]ue process requires that...the determination that reasonable ground exists for revocation of parole should be made by someone not directly involved in the case.... we need make no assumptions one way or the other to conclude that there should be an uninvolved person to make this preliminary evaluation of the basis for believing the conditions of parole have been violated."

Should the judge who had sentenced Paris have been the one to decide whether the Sheriff's decision to send Paris home under house arrest?

Maybe not. (He reportedly was angry with the Sheriff, not the appropriate frame of mind for a judge dealing with a person's liberty interest.)

Did the judge conduct a suitable hearing?

Maybe not.

The Supreme Court ruled, with respect to a parole revocation hearing:

"There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole authority. This hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation....

"We cannot write a code of procedure; that is the responsibility of each State. Most States have done so by legislation, others by judicial decision usually on due process grounds. Our task is limited to deciding the minimum requirements of due process. They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial."

It does not appear that the minimum requirements for parole revocation were met in Paris Hilton's house arrest revocation hearing and it is indisputable that Paris should not be victimized by a jurisdictional dispute between the sentencing judge and the Sheriff.

It is not apparent that there was a need to proceed at warp speed, as was done. Paris surely did not constitute a danger to the public while under house arrest wearing an ankle bracelet and she should be treated no worse as well as no better because she is a celebrity and controversial.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.


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Copyright 2007 by Michael J. Gaynor
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