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Alaska Supreme Court considering prisoner's plea that due process rights denied

Ben Anderson

The Alaska Department of Corrections and the state will have to defend accusations by a prisoner who claims his constitutional right to due process was violated at a prison disciplinary hearing where he was denied access to evidence or witnesses to defend himself.

On Friday, the Alaska Supreme Court upheld Richard DeRemer’s right to judicial review in Richard B. DeRemer III v. State of Alaska, Department of Corrections. DeRemer, an inmate at Spring Creek Correctional Center in Seward, was found guilty at a state disciplinary hearing of “hoarding medication” after two pills were found in his jail cell. A Superior Court dismissed DeRemer’s appeal of the ruling in September of 2011. Friday’s ruling reverses that lower court decision.

Civil rights in Alaska’s prison system

DeRemer was found guilty in 2006 of first-degree murder, arson, burglary and other crimes in the 2003 shooting death of David McKinney at his home in Big Lake, a sleepy Matanuska Valley community north of Wasilla, Alaska. A jury found DeRemer and his wife, Cynthia Estes, had conspired to kill McKinney, then steal cash and prescription medication from a safe in McKinney’s home.

The Supreme Court decision doesn’t impact the jury’s verdicts or his sentencing in those crimes. Friday’s decision stems from a search, after his confinement, of DeRemer’s locker at Spring Creek. In that search, prison personnel reported finding two pills they identified in the incident report as Demerol, a prescription pain narcotic.

DeRemer denies having Demerol in his locker and claims it was actually Ibuprofren that guards seized. To defend himself against violating prison rules, he requested photographs of the pills along with access to his own health records -- maintained by the state during his imprisonment -- that DeRemer maintains would have shown that the pills were only Ibuprofen. According to the Supreme Court order, these requests by DeRemer were "timely," meaning he asked for the evidence within the alloted time afforded prisoners to prepare their defense in a hearing.

DeRemer's request for the evidence was denied. In its decision, the Supreme Court noted that DeRemer was told he would have access to the evidence at trial:

[DeRemer] ... maintained that the pills found in his locker were Ibuprofen, and he again requested evidence to present a defense. But the hearing officer did not produce the seized pills, laboratory tests, photographs of the pills, DeRemer’s “medication dispersement form from [the prison] pill-line,” or any other items of evidence DeRemer requested.

Once it became apparent to DeRemer that he would not receive his requested evidence at the hearing, he attempted to call a nurse to testify that he had properly obtained the Ibuprofen from the prison medical dispensary. He also sought to ask the nurse whether the prison medical dispensary had ever prescribed Demerol.

The hearing officer refused DeRemer’s request to call a nurse as a defense witness, deeming the request untimely. The correctional officer who discovered the pills did not testify. But the hearing officer found DeRemer guilty of “hoarding medication,” relying entirely on the incident report.

According to the Department of Corrections’ own Disciplinary Hearing Notice form, given to inmates when they face such a hearing, a prisoner must request evidence at least 24 hours prior to the hearing.

The Department of Corrections, through a spokesperson, did not provide official comment on Friday’s ruling. Asked whether the DeRemer hearing was typical of administrative hearings for inmates in the state’s penal system -- and numerous other questions from Alaska Dispatch in response to the ruling -- Corrections Department officials said only that answers could be forthcoming Monday. The Department of Law was also reportedly looking further into the ruling released Friday morning.

Recording 'no longer available'

But that wasn’t the end of the questionable treatment of DeRemer’s case by the state and the Department of Corrections. After DeRemer had exhausted his administrative appeals, he appealed to the state Superior Court.

On May 19, 2011 -- one day after the state sent a letter to DeRemer telling him to pay $128 in “record preparation costs” -- the state informed the superior court that the audio recording of DeRemer’s hearing was “no longer available.”

Questions from Alaska Dispatch about how the Department of Corrections handles such recordings were also deferred until next week.

In the absence of the audio recording, the state requested -- and the Superior Court ordered -- that DeRemer “recreate ‘a statement of the evidence of his hearing...’” to present as an account of the proceedings to the court.

DeRemer objected to the request, arguing that his case should be dismissed -- and he should prevail in his appeal -- due to the lack of audio recording. Still, he eventually provided a “detailed record of his disciplinary hearing” from memory.

But then,  “...before setting a briefing schedule or permitting any briefing on the merits of DeRemer’s points on appeal, the superior court denied DeRemer’s procedural motion for summary reversal of his disciplinary conviction based on the lack of recording and then proceeded to dismiss DeRemer’s entire appeal.”

In other words, because the state had apparently lost the recording of DeRemer’s hearing, there was insufficient evidence on which to appeal the decision. The Superior Court also stated that the existing record of the case -- the disciplinary report from the initial discovery of the two pills -- provided sufficient evidence to support the decision.

Supreme Court rulings affect precedent used by the state of Alaska to justify rules and procedures implemented in all state-run departments. Friday’s decision gives the state 30 days to defend itself against the due process claims that arise from DeRemer’s case. In that defense, the state must brief justices on due process protections in the penal system.

DeRemer will then have 30 days to respond, and the Supreme Court will continue to handle the appeal.

Contact Ben Anderson at ben(at)alaskadispatch.com