2012: A Parole Violation Odyssey

Rodriguez v. Pallito, 2014 VT 18

By Elizabeth Kruska

Teacher: Bueller? Bueller? Bueller?
Simone: Um, he's sick. My best friend's sister's boyfriend's brother's girlfriend heard from this guy who knows this kid who's going with the girl who saw Ferris pass out at 31 Flavors last night. I guess it's pretty serious.
Teacher: Thank you, Simone.
Simone: No problem whatsoever.

Hearsay is an out of court statement used to prove the truth of the matter asserted in the statement. This example is something like eight layers of hearsay, and never stops being funny. If Simone had to prove in court that Ferris Bueller actually passed out at 31 Flavors last night, a judge would've required that she produce the girl who saw Ferris pass out to testify about what she saw. But this was just a teacher taking attendance, not a trial where Ferris’s liberty was at stake. Actually, since Ferris Bueller was taking the day off, it was pretty much exactly opposite of that.

Intricately enmeshed with hearsay is a defendant's right to be confronted with the witnesses testifying against him. If the government wants to prove a defendant committed a crime, and to jail the defendant for it, it'd better bring the actual human witnesses before the defendant to testify to the facts at issue. It's not enough for a witness to say "it must've happened because someone told me it did." There are lots of reasons for this. First of all, hearsay isn't always reliable. Second, the constitution ensures confrontation as a right where liberty is at stake.

And that brings us to Mr. Edwin Rodriguez and his parole violation odyssey of 2012. He was on parole for . . . . Well, it doesn't matter why he was on parole. He just was. One of his parole conditions was that he “not engage in violent, assaultive, or threatening behavior … and shall conduct [him]self in an orderly and industrious manner.”

The Vermont Parole Board held a hearing in June and July of 2012 because petitioner was alleged to have violated that condition by assaulting his mom in Springfield, Massachusetts. Unless petitioner was in some kind of mother-son fight club, beating up his mom seems to fall pretty squarely within that category.

At the first day of the hearing, petitioner’s mom and petitioner’s sister—who was also a witness—did not appear to testify due to “insufficient efforts” on the part of the Parole Board to get them there from Massachusetts. The Board took some testimony from the responding police officer. It consisted of pretty much all hearsay, since the officer didn’t actually witness any part of the alleged assault. He only knew what the mom and the sister told him when he arrived on the scene. He might've even said he heard petitioner passed out at 31 Flavors. Who knows? The Parole Board found a violation, which petitioner appealed to the Rutland Superior Court. The Court remanded the case back to the Parole Board, and required that the two witnesses show up to actually testify because, you know, the Constitution says so.

Well. Back to the Parole Board they go, and alas, mom and sister don't show up again. They live in Massachusetts, and aren't under subpoena. This time the DOC lawyer says, “the department doesn’t have subpoena power in Massachusetts . . . [s]o therefore, they’re allowed to use these hearsay statements.” I just looked at the hearsay exceptions, and can’t find the “can’t subpoena the witness” exception. Is that a thing? Because I’m not totally sure it’s a thing.

Petitioner testifies that he and his mother had a “discussion” and that someone ended up calling the police. He denied ever touching her.

The Parole Board again hears from the cop, who reiterates his hearsay from before, but this time adds that he might've seen scratches on mom's neck. The Parole Board says "Thank you, officer" who responds, "No problem whatsoever." They find a violation again, and petitioner appeals again.

Back to the Rutland Superior Court he goes, and the finding was reversed. The Superior Court had some problems with the officer’s credibility, and felt like there were holes in the testimony. Those holes were filled with hearsay, which didn’t exactly fix the problem.

The State appealed. Petitioner thought the appeal wasn’t timely, but it turns out it was, so let’s not talk about that anymore.

The State essentially argued it should win because the Superior Court isn’t allowed to substitute its judgment for that of the Parole Board. The Parole Board heard the evidence, and is given a great deal of deference on appeal. While this is true, it’s not the whole story.

The rest of the story is that pesky Fourteenth Amendment. It guarantees due process during a parole board hearing. As it turns out, when we’re dealing with important things like somebody’s liberty, the Parole Board has to hear the facts but also has to adhere to the Constitution. Like it or not, there are important rights like confrontation, which are guaranteed when somebody’s liberty is at stake. If the Parole Board finds a violation, the choice pretty much boils down to whether someone on parole stays out of jail or goes back to jail. I’d call that a liberty interest.

Sometimes the right to confrontation can be dispensed with, and sometimes not, depending on the hearsay statement sought to be admitted. If it’s vanilla hearsay that isn’t controversial, like a deed, the court can probably admit it over a confrontation objection. The spicier the hearsay, the more the Confrontation Clause applies. If it’s a personal, adversarial relationship (like between an arrestee and a cop), the court had better make some bang-up findings about why that spicy kind of hearsay is reliable enough that it should be admitted despite the constitutional requirement of confrontation.

There weren’t any of those kinds of findings here, and the cop’s testimony was about as spicy as it gets, at least on the hearsay–confrontation scale. Since mom and sister didn’t show up, and cop didn’t actually witness anything, all he’s got to go on is what they told him. The Parole Board decided to use those statements for their truth, which is just good old-fashioned hearsay. And more than that, it's a good old-fashioned confrontation problem.


  1. The Vermont Parole Board gets its legal advice from the AG's DOC lawyers. As far as I can tell, with the exception of a brand new hire, the DOC lawyers know little about criminal law or procedure. I don't think they give the board sound advice. It's not the first time recently that the board has botched simple confrontation questions. It's frustrating and time-consuming.

    The next question I'd like raised is whether the parole board violates its constitutional mandate to be "impartial" when it takes its legal advice from the DOC's lawyers and not independent counsel?


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