Jackson v. Buchler

ANN WALSH BRADLEY, J.

¶ 1. The petitioner, Darnell Jackson, seeks review of an unpublished decision of the court of appeals affirming an order denying his petition for a writ of certiorari.¹ In a prison disciplinary proceeding, Jackson was found guilty of inciting a riot. He contends that the proceeding violated procedural due process.

¶ 2. Video evidence is the focus of Jackson's initial due process arguments. He asserts that the video footage undermines or contradicts the other evidence considered by the adjustment committee, rendering the evidence of his guilt constitutionally insufficient. Additionally, he contends that the video footage is exculpatory or impeaching evidence, which should have been disclosed to him under Brady v. Maryland, 373 U.S. 83 (1963).

¶ 3. We determine that the video footage is inconclusive and neither undermines nor contradicts the evidence considered by the adjustment committee. We further conclude that with or without the video footage, there was sufficient evidence of Jackson's guilt. Under the facts presented by this case, we need not and do not determine whether any version of Brady — limited or otherwise — applies to prison disciplinary proceedings.

¶ 4. Additionally Jackson asserts that his due process right to an impartial decisionmaker was violated because a member of his adjustment committee also had "substantial involvement" in the incident because she participated in the investigative process. Based on this record, we cannot conclude as a matter of law that the committee member's involvement in the incident was "substantial."

¶ 5. Accordingly we affirm the court of appeals.

I

¶ 6. At approximately 1:40 p.m. on November 11, 2004, several New Lisbon Correctional Institution security guards were attacked and injured by three inmates: Jamie Vest, Bernard Treadwell, and Alvin Kenney. The attack occurred at the A Unit officers' station, which is located between the A Unit Side 1 and Side 2 dayrooms. According to the subsequent investigation, many inmates participated in the assaults by purposefully rushing toward the officers' station and positioning themselves to participate in the riot.

¶ 7. Although the attack itself appears not to have been recorded by security cameras, video footage of the Side 1 and Side 2 dayrooms was used in the investigation. Many inmates were disciplined as a result of their participation in the riot.

¶ 8. At the time of the riot, Darnell Jackson was working in the prison barbershop, which abuts the Side 1 dayroom. There is no evidence or allegation that Jackson directly participated in the riot.

¶ 9. Nevertheless, staff investigators uncovered information implicating Jackson as a leader responsible for inciting the attack. Two inmates who requested confidentiality stated that they had direct personal knowledge of the circumstances which led to the riot. Both stated that Jackson, who used the alias "Wiz," acted in a leadership position in a gang called the Vice Lords. Both indicated that prior to the riot, Jackson met with the inmates and instructed them to assault the guards.²

¶ 10. A conduct report was issued, which cited Jackson for inciting a riot³ and for group resistance.⁴ The conduct report noted: "Tapes from the NLCI A Unit and NLCI exterior cameras from 11/11/04 have been utilized by the investigators of the 11/11/04 riot."

¶ 11. As set forth in the conduct report, the informant referred to as CI#1 stated in part:

Darnell Jackson is calling it for the Vice Lords and P-Stones. I saw inmate[s] putting their boots and gloves on and I knew something was going to happen. Vest, Treadwell, Darnell Jackson and Alvin Kenney were all huddled up first in the hallway. All the people who assaulted the staff are VL. and P-Stones (Rangers). I also saw Lipsey and Ward outside in the hallway talking to "Wiz" (AKA Darnell Jackson.) I saw Wiz in the hallway, everybody had on boots and gloves.

The informant referred to as CI#2 stated in part:

Lipsey (Samuel) was on crutches and came back to the unit from HSU. Lipsey stated to the inmates on the unit that he saw Love being attacked and the guards had him on the ground and were beating him. Treadwell and Vest then went to Whiz (who is first in command) and told him about Love. Whiz was behind the incident. He stated to them, "You guys know what you have to do."

¶ 12. The conduct report concluded that "Jackson is in a leadership position with the Vice Lords, called for the assault to happen, and was talking to the three inmates who assaulted staff seconds before the assault took place." Further, it stated that the confidential informants "are believed to be credible as their statements were obtained separately. Neither inmate had knowledge of the other's statement." It determined that "[t]he statements were consistent with and corroborated one another."

¶ 13. Jackson was provided with a copy of the conduct report and a notice of his right to a hearing. He submitted an affidavit, which asserted that at no time did he talk with Treadwell, Vest, or Kenney, and that he had nothing to do with the attack. He further contended that he is no longer a member of the Vice Lords, that he was never a member of the P-Stones, and that he never acted in a leadership position with those gangs.

¶ 14. According to his affidavit, on the afternoon of the riot Jackson was in the prison barbershop cutting Inmate Piel's hair. He heard a loud commotion and saw inmates gathered around the TV monitor. Jackson contended that he left the shop for 15 seconds to look at the TV monitor, but he could not see what was happening and returned to the shop. After he finished cutting Piel's hair, Jackson left the shop. At that time, there was a commotion at the sergeant's desk, and he saw Treadwell, Vest, and Kenney swinging their fists and kicking someone. He proceeded towards his cell.

¶ 15. The Security Office granted Jackson's request to present the testimony of two inmates, Larry Piel and Bernard Treadwell. It denied Jackson's request to present the testimony of two additional inmates, Samuel Lipsey and Jamie Vest, and one Department of Corrections (DOC) officer, Captain Harrel. The office explained that Jackson did not provide good cause to demonstrate that the additional witnesses could provide essential testimony.⁵

¶ 16. Jackson, Piel, and Treadwell testified at the hearing. The two confidential informants did not testify.

¶ 17. The adjustment committee found Jackson guilty of inciting a riot and not guilty of group resistance. As a result of this disposition, Jackson's release date was extended by 179 days.

¶ 18. Lieutenant Pamela Zank completed form DOC-84, entitled "Disciplinary Hearing: Reasons for Decision and Evidence Relied on," (hereinafter, "Hearing Decision"). As provided in the Hearing Decision, the committee found it "more likely than not inmate Jackson committed the act of inciting a riot." The Hearing Decision explained that the committee "evaluated all the evidence, confidential statements and testimony and reached its conclusion that the statements in the conduct report are correct." It concluded that Jackson's testimony was "less credible" and that "inmate witness testimony [was] not credible."

¶ 19. The Hearing Decision form contained a section for the adjustment committee to set forth the physical evidence it relied upon in reaching its decision. That section provided that among other evidence,⁶ the committee relied on "video" evidence in finding Jackson guilty.

¶ 20. Jackson timely appealed to Warden Buchler.⁷ Among other claims, Jackson contended that Lt. Zank's participation in the hearing violated DOC rules and his due process right to a fair and impartial hearing, and that there was insufficient evidence to establish his guilt. He asserted that Lt. Zank was among the officers who investigated the assault, that she had interviewed Jackson about the incident, and that she asked Jackson to sign a waiver of his hearing rights. Jackson made no claim regarding video evidence.

¶ 21. Warden Buchler affirmed the committee's decision, concluding that there was sufficient evidence to sustain its determination of guilt. He also found that "Lt. Zank did not have substantial involvement in the incident to warrant not being on the hearing committee."

¶ 22. Following the inmate complaint procedures outlined in Wis. Admin. Code Ch. DOC 310, Jackson filed two offender complaints with the institutional complaint examiner. His first complaint raised issues related to the statements of the confidential informants. That complaint was dismissed. His second complaint asserted that the committee violated Wis. Admin. Code DOC § 303.82(2)⁸ by permitting Lt. Zank to participate as a member of the adjustment committee. The institutional complaint examiner recommended that the complaint be dismissed, concluding that "Lt. Zank did not have substantial involvement in the investigative process." On review, the corrections complaint examiner found "no procedural error of consequence" and also recommended that the complaint be dismissed. Ultimately, the Secretary of the DOC accepted the recommendation and dismissed Jackson's complaint.

¶ 23. Jackson filed a petition for a writ of certiorari in the circuit court pursuant to Wis. Stat. § 801.02(5).⁹ The petition advanced four arguments for consideration: (1) the adjustment committee improperly relied on the confidential informants' statements; (2) Lt. Zank's participation on the committee denied Jackson a fair tribunal; (3) the committee gave inadequate reasons in support of its determination of guilt; and (4) certain evidence, including the video evidence, should have been but was never disclosed.

¶ 24. Jackson's petition for certiorari triggered the respondents' obligation to transmit the record to the circuit court. Prior to transmitting the record, Warden Buchler reviewed the conduct report and the record once more.¹⁰ He remanded the Hearing Decision to the adjustment committee and instructed the committee to remove from its decision the reference to a video:

I can find no substantiation that there was a video showing Mr. Jackson's involvement in this incident. However, for the reasons I indicated on the initial appeal form . . . , I find no reason to alter the decisions and disposition of the disciplinary hearing[.] Therefore, I am remanding this back to the original hearing committee only for a correction of the record on form DOC-84 regarding physical evidence used for this hearing.

¶ 25. As a result of the warden's correction, the record that was provided to the circuit court contained an amended Hearing Decision in which the word "video" was crossed out. No video was included in the agency's record.

¶ 26. Jackson filed a motion to strike the return.¹¹ Among other claims, he asserted that "[t]he video tape which was used against the petitioner as physical evidence was not in the return and was illegally removed from the record," and that by removing this evidence from the record, the respondents were attempting to evade judicial review. In his written brief to the circuit court, Jackson explained that video footage of the incident "ostensibly would have shown Jackson did not exit the Barber Shop and purportedly converse and/or signal participants in the disturbance."

¶ 27. The respondents disputed Jackson's claim that the warden had removed video evidence from the record. Rather, they contended that "[t]he adjustment committee in the instant case erroneously included a reference to a videotape in the evidence relied on section of the [Hearing Decision]."¹² The respondents further asserted that even if such a tape existed, Jackson would have no right to its production.

¶ 28. In a written decision, the circuit court affirmed. It conducted an in-camera review of the confidential informants' statements and determined that they satisfied the requirements for admissibility of confidential statements found in Wis. Admin. Code DOC § 303.86.¹³ The court concluded that substantial evidence supported the committee's decision and that based on the confidential informants' statements, the committee could reasonably conclude that Jackson encouraged and directed the inmates to assault staff.

¶ 29. Turning to the claims based on video evidence, the circuit court stated that Jackson failed to exhaust the administrative remedies provided by the DOC. Nevertheless, the court interpreted the warden's August 29 letter as "reflect [ing] the fact that no video was actually reviewed during the disciplinary process." Because the adjustment committee found the evidence sufficient without any video evidence, the circuit court determined that Jackson's arguments about the video were moot. Further, the "mistaken reference to video footage" in the Hearing Decision was harmless error because "the committee does not discuss video evidence anywhere in its reasons for decision."

¶ 30. Finally, the circuit court concluded that Lt. Zank's participation in the adjustment committee was proper. It cited Wis. Admin. Code DOC § 303.82(2), which provides that "[n]o person who has substantial involvement in an incident, which is the subject of a hearing, may serve on the committee for that hearing." The court concluded that the type of "involvement" contemplated by the code provision is involvement in "the riot itself, not the investigation that followed."

¶ 31. In an unpublished decision, the court of appeals affirmed the circuit court. Jackson v. Buchler, No. 2006AP948, unpublished slip op. (Wis. Ct. App., Dec. 13, 2007). It agreed with the circuit court that the confidential informants' statements were admissible, that they corroborated each other, and that they provided sufficient evidence to sustain the committee's finding of guilt. Id., ¶¶ 11-13.

¶ 32. With regard to Jackson's arguments about video evidence, the court of appeals asserted that "Jackson has not provided us with any rule or case law that gives him a right to exculpatory evidence." Id., ¶ 14. It concluded that an inmate's right to present physical evidence does not establish that the inmate is entitled to obtain evidence from prison officials. Id.

¶ 33. Finally, the court of appeals concluded that Wis. Admin. Code DOC § 303.82(2), which bars a person with "substantial involvement" in an incident from sitting on the adjustment committee, was ambiguous. The term "involvement" could be limited to involvement in the events giving rise to the disciplinary charge, or it could also include involvement in the investigation of the incident. Id., ¶ 5. Nevertheless, the court of appeals declined to interpret the code provision because Jackson made no argument that Lt. Zank's participation in the investigation was "substantial." Id., ¶ 10. Jackson petitioned this court for review.¹⁴

¶ 34. At the first oral argument, Jackson persuasively argued that video footage depicting the hallway outside the barbershop could provide extremely relevant evidence. He advanced that the confidential informants' statements would be seriously undermined if video footage depicting the hallway outside the barbershop existed and Jackson was not shown huddling with the assailants. The respondents countered that "[t]here is nothing in the record to indicate whether any videotapes exist that might support Jackson's assertion of innocence."

¶ 35. A majority of this court was troubled by the state of the record. In an order issued after the oral argument, we explained: "Because a video that was once in the record is no longer in the record, this court is being asked to decide the legal issues presented to us without access to the evidence." Jackson v. Buckler, No. 2006AP948, unpublished order (Wis. S. Ct., Feb. 2, 2010).

¶ 36. We concluded that "the present record is insufficient for us to determine whether the petitioner's rights have been violatedQ under any legal theory." Id. Therefore, we retained jurisdiction of the appeal, but remanded for the circuit court to "receive the video in question and perform an in camera review of the video to determine whether it is exculpatory and material." Id.

¶ 37. On remand, the circuit court received four video clips from the DOC, which have now been added to the record. The circuit court concluded that this evidence was neither material nor exculpatory:

[A]fter having watched the video with counsel, I now determine that it is neither exculpatory nor material for Darnell Jackson's claim. This is because it does not either support or refute Darnell Jackson's claim that he never left the barbershop. The video itself does not continuously or even sporadically show the barbershop door. I think that means that it is simply not exculpatory.

We directed the parties to file simultaneous briefs about the effect of the circuit court's oral decision on the case, and we scheduled the matter for a second oral argument.¹⁵

II

¶ 38. On certiorari, a court's review of an agency decision is limited to four basic inquiries: (1) whether the agency kept within its jurisdiction; (2) whether it acted according to law; (3) whether its actions were arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence presented was such that the agency might reasonably make the determination it did. State ex. rel Staples v. DHSS, 115 Wis. 2d 363, 370, 340 N.W.2d 194 (1983). As part of this inquiry, the court may consider whether the petitioner was denied due process of law. State ex rel. Warren v. Schwarz, 219 Wis. 2d 615, 628-299, 579 N.W.2d 698 (1998).

¶ 39. In the present case, our inquiry is focused on whether the procedures employed by the adjustment committee satisfied due process. When evaluating the weight of the evidence on certiorari review, a court will affirm the agency's view of the evidence if "reasonable minds could arrive at the same conclusion" reached by the agency. State ex rel. Palleon v. Musolf 120 Wis. 2d 545, 549, 356 N.W.2d 487 (1984). Whether the agency's disciplinary procedures satisfied due process is a question of law, which we review independently of the determinations rendered by the agency, the circuit court, and the court of appeals. Warren, 219 Wis. 2d at 629.

Ill

¶ 40. Jackson advances three due process arguments. Two relate to video evidence, and the third relates to the impartiality of the adjustment committee. Before addressing the merits of Jackson's due process claims, we address the threshold question of whether this court lacks authority to decide Jackson's claims related to video evidence under the doctrine of exhaustion of remedies.

¶ 41. Wisconsin Stat. § 801.02(7)(b) provides: "No prisoner may commence a civil action or special proceeding, including a petition for a common law writ of certiorari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted all available administrative remedies that the department of corrections has promulgated[.]" If an inmate wishes to challenge the procedures used by an adjustment committee in a prison disciplinary action, he or she must follow the procedure outlined in Wis. Admin. Code Ch. DOC. We have interpreted § 801.02(7)(b) to require exhaustion of constitutional challenges even when raising the challenge in an administrative proceeding would be futile. State ex rel. Hensley v. Endicott, 2001 WI 105, ¶ 9, 245 Wis. 2d 607, 629 N.W.2d 686.

¶ 42. In this case, there is no dispute that Jackson commenced an "action" — here a common law writ of certiorari — that is properly before the court.¹⁶ Rather, the parties dispute whether Jackson, now properly before the court, is entitled to raise specific claims that were not raised in the administrative proceedings and were first argued in the circuit court.

¶ 43. This inquiry is complicated by the unusual facts of this case, as well as ambiguities in the agency record. On certiorari, a court reviews the record of the agency. In this case, however, prior to transmitting the record to the circuit court, the warden remanded the case to the original hearing committee for "a correction of the record." He asserted: "I can find no substantiation that there was a video showing Mr. Jackson's involvement in this incident."

¶ 44. The warden's explanation for requesting the change in the record leaves unanswered questions. There is an inherent contradiction between the Hearing Decision (which listed "video" among the evidence the committee relied upon in determining guilt) and the warden's statement (which acknowledged that no video evidence supported Jackson's guilt).¹⁷

¶ 45. Inmates and courts alike expect that "some form of comprehensible and adequate record should be kept and provided for purposes of review." State v. Goulette, 65 Wis. 2d 207, 216, 222 N.W.2d 622 (1974). "[T]he provision for a written record helps to insure that administrators, faced with possible scrutiny by state officials and the public, and perhaps even the courts,. . . will act fairly." Wolff v. McDonnell, 418 U.S. 539, 565 (1974). Jackson presented a persuasive argument that the record from the adjustment committee hearing was incomplete, and we remanded so that the record could be supplemented.¹⁸

¶ 46. This case has been pending in this court for nearly two years (at least in part due to uncertainty about the adequacy of the agency's record), we have held two oral arguments, and upon an interlocutory remand to the circuit court the record has now been supplemented with what appears to be the missing video evidence. Given these unusual circumstances, we conclude that both parties are better served by a final resolution of their dispute than they would be by a robust discussion of the exhaustion requirement and the possibility of a remand. Accordingly, we turn instead to address the merits of the related claims.

IV

¶ 47. The United States Supreme Court has explained that the basic guarantees of procedural due process apply in prison disciplinary proceedings. In Wolff, the Court proclaimed: "There is no iron curtain drawn between the Constitution and the prisons of this country." Id. at 555-56. The proposition that "prisoners in state institutions are wholly without the protections of the Constitution and the Due Process Clause ... is plainly untenable." Id. at 555.

¶ 48. Nevertheless, prison disciplinary proceedings are not equivalent to criminal trials, and an inmate's due process rights are "subject to restrictions imposed by the nature of the regime to which they have been lawfully committed." Id. at 556. In this setting, an inmate is not given the "full panoply of rights due a defendant" in a criminal trial. Id.

¶ 49. In this case, there is no dispute that Jackson's procedural due process rights are implicated. The disciplinary committee's disposition had the effect of extending his mandatory release date. The question is whether the procedures of the committee satisfied due process.

¶ 50. The Wolff Court set forth three hallmarks of due process that must be satisfied in prison disciplinary actions: (1) a written notice of the claimed violation; (2) a written statement of the evidence relied upon and the reasons for the disciplinary action taken; and (3) an opportunity to call witnesses and present documentary evidence. Id. at 563-66. Jackson's arguments relate to his disciplinary hearing and thus emanate from the third hallmark of due process.

¶ 51. Although there is no dispute that Jackson had a hearing, he challenges the procedures employed by the committee during the hearing. As with any procedural due process inquiry, the touchstone of our analysis is whether the procedures used by the committee were fundamentally fair. See D.M.D. v. State, 54 Wis. 2d 313, 318, 195 N.W.2d 594 (1972); State v. Marinez, 2010 WI App 34, ¶ 21, 324 Wis. 2d 282, 781 N.W.2d 511.

¶ 52. In Part V, we address Jackson's claims that relate to video evidence. In Part VI, we address his claim regarding the impartiality of the committee.

V

¶ 53. Jackson makes two separate claims regarding the video evidence that is now a part of the appellate record. He argues that, considering all the evidence in light of what is portrayed on the video footage, there was insufficient evidence to find him guilty of inciting a riot. He also argues that the committee had an obligation to produce the evidence under Brady v. Maryland, 373 U.S. 83 (1963).

¶ 54. Although Jackson's claims are grounded in two distinct legal theories, both are based on his assertion that video evidence contradicts or undermines the confidential informants' testimony. We begin by addressing Jackson's sufficiency of the evidence claim.¹⁹

A

¶ 55. Jackson argues first that there was insufficient evidence to support the adjustment committee's determination that, more likely than not, he incited the riot.²⁰ See Santiago v. Ware, 205 Wis. 2d 295, 337, 556 N.W.2d 356 (Ct. App., 1996). The question is "whether reasonable minds could arrive at the same conclusion reached by" the adjustment committee. State ex rel. Richards v. Traut, 145 Wis. 2d 677, 680, 429 N.W.2d 81 (Ct. App. 1988).

¶ 56. The primary evidence linking Jackson to the riot were the statements of two confidential informants, CI#1 and CI#2. Jackson acknowledges that these statements were admissible under DOC rules.²¹ He also acknowledges that without more, the statements would be sufficient evidence of guilt to satisfy due process.²²

¶ 57. We agree. If believed, the confidential informants' accounts establish that Jackson was "huddled up" in the hallway talking with Treadwell, Vest, and Kenney shortly before those inmates attacked the guards. Further, if believed, they establish that Jackson told the other inmates: "You guys know what you have to do." Under the circumstances, reasonable minds could interpret Jackson's alleged statement as an instruction to attack the guards. Reasonable minds could conclude that the confidential informants' statements, along with other facts set forth in the conduct report, established that it was more likely than not that Jackson incited the riot.

¶ 58. Nevertheless, Jackson asserts that the video evidence contradicts the informants' statements, rendering them not credible. In light of the video evidence, Jackson contends that there was insufficient evidence to sustain the committee's determination.

¶ 59. During oral argument, the court viewed a portion of the video footage, which Jackson identifies as the crux of his argument.²³ This two-minute clip depicts Side 1 of New Lisbon's A Unit on the day of the riot. Jackson asserts that the clip begins approximately one minute before the guards were attacked and two minutes before additional guards responded to the riot.

¶ 60. Throughout the duration of the clip, the camera sporadically pans around the Side 1 dayroom. The door of the barbershop, which abuts the dayroom, is sometimes but not always visible in the shot.

¶ 61. According to Jackson's representations to the court, at approximately 49 seconds into the clip, the camera pans to a static shot depicting Vest, Treadwell, Kenney, and other unnamed inmates. Jackson is not present. The inmates are gathered in a loose cluster not far from the barbershop door. At the time that the inmates are first depicted, they are walking in the direction of the guard station. The camera remains on the inmates for a total of three seconds before panning away.

¶ 62. During the following 78 seconds, the footage intermittently depicts the barbershop door, which remains closed. Several guards emerge from behind the guard station. Shortly thereafter, the guards sprint off camera toward Side 2 of the A-Unit. Jackson infers that at that point, the guards are responding to the riot.

¶ 63. Jackson maintains that the video evidence described above "fatally undermines the testimony of the two confidential informants who stated that Jackson left the barbershop and met with rioting inmates to tell them to start the riot." We do not reach the same conclusion.

¶ 64. The two-minute segment of video footage neither affirms nor disproves the confidential informants' assertion that Jackson met with the assailants shortly before the attack. It does not provide a consistent shot of the barbershop door or the hallway outside the barbershop where the meeting allegedly took place. Likewise, it provides no more than three seconds of footage depicting the assailants' actions immediately prior to the riot.

¶ 65. Rather, by the time the camera first pans to the assailants, they have already assembled as a group and are already advancing toward the guard station. From the footage, it is impossible to determine how long the assailants had been congregating near the barbershop door. Likewise, it is impossible to determine whether any other inmates, including Jackson, were present before the assailants were first depicted. ■ Certainly, it is conceivable that Jackson met with the inmates, "called" the riot, and returned to the barbershop in the seconds or minutes before the security camera panned to the assailants.

¶ 66. Jackson concedes that the alleged meeting with the assailants could have taken place prior to the events depicted in the video. Yet, he contends, a meeting that occurred but was not captured on tape would be inconsistent with the conduct report's assertion that Jackson met with the assailants "seconds before" the riot occurred.²⁴

¶ 67. Jackson's contention is not supported by the events actually portrayed in the video clip. Rather than contradicting the informants' statements, reasonable minds could conclude that the video clip and the informants' statements are consistent. The video shows that Treadwell, Vest, and Kenney did in fact assemble outside the barbershop shortly before attacking the guards. To that end, the clip may actually corroborate one aspect of the confidential informants' account.

¶ 68. For the reasons set forth above, we determine that the video evidence is inconclusive and neither undermines nor contradicts the informants' statements. With or without the video evidence, reasonable minds could arrive at the same conclusion reached by the adjustment committee. Accordingly, we conclude that the evidence of Jackson's guilt was sufficient to satisfy due process.

B

¶ 69. Having concluded that the video evidence neither undermines nor contradicts the confidential informants' statements — and that it may in fact corroborate them — we turn next to briefly address Jackson's argument regarding exculpatory evidence. Brady v. Maryland and its progeny provide that the government may not withhold exculpatory or impeaching evidence from a defendant in a criminal trial.²⁵ Jackson asserts that the government's obligation to disclose exculpatory or impeaching evidence also applies in the context of a prison disciplinary proceeding, and that the adjustment committee was obligated to produce this video evidence.

¶ 70. The respondents counter that there is no controlling law applying Brady's requirements to prison disciplinary proceedings.²⁶ If this court were to recognize a Brady-like claim in this context, however, the respondents urge us to conclude that its application must be limited by the "needs and exigencies of the institutional environment." See Wolff, 418 U.S. at 555.

¶ 71. In the sufficiency of evidence section set forth above, we determined that the video evidence is inconclusive. It is that same determination that leads us to conclude that we need not and should not decide in this case whether any version of Brady — limited or otherwise — applies in the prison disciplinary setting.

¶ 72. Here, we conclude that the adjustment committee's failure to provide the video footage to Jackson did not violate his due process right to a fundamentally fair hearing. The video footage adds nothing of evidentiary value for either party.²⁷

VI

¶ 73. Finally, we turn to Jackson's claim that the adjustment committee was not impartial. Jackson contends that a member of the committee, Lt. Zank, also participated in the investigation in violation of Wis. Admin. Code DOC § 303.82(2) and due process.

¶ 74. Inmates are entitled to an impartial adjustment committee in disciplinary hearings to prevent "such a hazard of arbitrary decisionmaking that it should be held violative of due process of law." Wolff, 418 U.S. at 571. The DOC has promulgated a rule that attempts to codify this right. Wisconsin Admin. Code DOC § 303.82(2) provides: "No person who has substantial involvement in an incident, which is the subject of a hearing, may serve on the committee for that hearing."

¶ 75. The parties dispute the interpretation of the DOC rule. The respondents argue that the rule applies only when the committee member has had substantial involvement in the underlying events upon which the conduct report was based — here, the riot. Jackson contends that the rule also applies when the committee member has had substantial involvement in the investigation of those events. We need not resolve this question here. Under either interpretation, the question is whether the committee member's prior involvement was "substantial."

¶ 76. The record does not reveal that Jackson objected to Lt. Zank's participation in the adjustment committee at the time of the hearing. As a result, the adjustment committee did not make any findings of fact regarding the extent of Lt. Zank's involvement.²⁸

¶ 77. Without any findings of fact, we are left with only Jackson's allegations. Jackson alleges that Lt. Zank interviewed him after the riot, and that during the interview, Lt. Zank asked him to waive his hearing rights.

¶ 78. Perhaps because the record on this subject is so sparse, both parties attempt to supplement it. At oral argument, the respondents asserted that Lt. Zank met with Jackson for the purpose of delivering a copy of the conduct report. Yet, that assertion is not supported by the documentary evidence in the record. The conduct report reflects that H. Hermann, Jackson's appointed staff advocate, signed the report as the "staff member delivering copy to offender."

¶ 79. By contrast, Jackson characterizes Lt. Zank's question about waiver as "inappropriate." However, we note that "[a]n inmate may waive the right to a due process hearing in writing at any time," and it is standard protocol to provide inmates notice of the right to a hearing and the option to waive it. See Wis. Admin. Code DOC §§ 303.76(l)(c), 303.76(2).

¶ 80. If Lt. Zank did in fact have a substantial role in building the case against Jackson, then her impartiality might reasonably be questioned. Yet, there is nothing in the record to support such a conclusion. Based on this sparse record, we cannot conclude as a matter of law that Lt. Zank's involvement in the incident was "substantial."

¶ 81. In sum, we determine that the video footage is inconclusive and neither undermines nor contradicts the evidence considered by the adjustment committee. We further conclude that with or without the video footage, there was sufficient evidence of Jackson's guilt. Under the facts presented by this case, we need not and should not determine whether any version of Brady— limited or otherwise — applies to prison disciplinary proceedings.

¶ 82. Finally, based on this record, we cannot conclude as a matter of law that Lt. Zank's involvement in the incident was "substantial." Accordingly, we affirm the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

1 See Jackson v. Buchler, No. 2006AP948, unpublished slip of. (Wis. Ct. App., Dec. 13, 2007), affirming an order of the circuit court for Dane County, Maryann Sumi, J.

2 At least two other inmates gave statements that appeared to implicate Jackson. One inmate stated that Jackson came out of the barbershop where Vest, Treadwell, and Kenney were located, and then returned to the barbershop prior to the assault. Another inmate stated that Jackson was "a five star general for the Vice Lords."

3 Wisconsin Admin. Code DOC §303.18 provides: "Any inmate who encourages, directs, commands, coerces or signals one or more other persons to participate in a riot is guilty of an offense. 'Riot' means a disturbance to institutional order caused by a group of 2 or more inmates which creates a risk of injury to persons or property."

4 See Wis. Admin. Code DOC §§ 303.20, 303.03(4).

5 Wisconsin Admin. Code DOC § 303.81(1) provides in part: "The accused may directly or through an advocate make a request to the security office for witnesses to appear at the major violation hearing.... Except for good cause, an inmate may present no more than 2 witnesses in addition to the reporting staff member or members."

During his administrative appeals, Jackson asserted that the denial of his request to call these witnesses was a due process violation. However, he has not renewed this argument in the circuit court, the court of appeals, or this court.

6 The other evidence listed in the Hearing Decision includes: statement in the conduct report, other testimony, confidential witness statements, C-120, diagram, and gang coordinator credentials.

7 See Wis. Admin. Code DOC § 303.76(7).

8 Wisconsin Admin. Code DOC § 303.82(2) provides: "No person who has substantial involvement in an incident, which is the subject of a hearing, may serve on the committee for that hearing. Committee members shall determine the subject matter of the hearing in advance in order to allow replacement of committee members if necessary and thereby avoid the necessity of postponing the hearing."

9 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.

10 See Wis. Admin. Code DOC § 303.76(7)(e).

11 When an agency transmits its record to a circuit court for certiorari review, the agency's record is sometimes referred to as the "return."

In addition to his motion to strike the return, Jackson filed a motion to compel the production of certain evidence, a motion to stay the proceedings until the court decided the merits of the motion to strike, and a motion challenging the sufficiency of evidence submitted for in camera review. In its final decision on the merits of the petition, the circuit court denied all of Jackson's motions.

12 To explain this alleged mistake, the brief asserted that the November 11 assault "resulted in disciplinary proceedings against numerous inmates," many of whom were directly involved in the assault and were depicted in video footage of the event.

13 Wisconsin Admin. Code DOC § 303.86(4) provides: "If the institution finds that testifying would pose a risk of harm to the witness, the committee may consider a corroborated, signed statement under oath from that witness without revealing the witness's identity.... The adjustment committee shall reveal the statement to the accused inmate, though the adjustment committee may edit the statement to avoid revealing the identity of the witness.. . . Two anonymous statements by different persons may be used to corroborate each other."

14 When we accepted Jackson's petition, we directed the parties to address additional questions related to exhaustion of administrative remedies and the applicability of Brady v. Maryland, 373 U.S. 83 (1963), to prison disciplinary proceedings.

15 Prior to the argument, Jackson filed a motion seeking permission to play a two-minute portion of the video footage during oral argument. We granted the motion and directed the parties to file a stipulation of fact, describing in relevant detail the events depicted.

The parties' joint stipulation set forth the following facts: The video footage depicts Side 1 of the A Unit of the New Lisbon Correctional Institution. The door to the barbershop is not shown continuously throughout the video segment. Jackson is not depicted at any time during the video segment.

Further description of the individuals and events depicted in the video clip is set forth below in the analysis.

16 The inmate must appeal to the warden under Wis. Admin. Code DOC § 303.76, and if unsuccessful, must then file an inmate complaint following the procedures outlined in Wis. Admin. Code Ch. DOC 310. State ex rel. L'Minggio v. Gamble, 2003 WI 82, ¶ 12, 263 Wis. 2d 55, 667 N.W.2d 1. Here, Jackson appealed the decision to the warden, filed a complaint with the inmate complaint examiner, sought review from the corrections complaint examiner, and ultimately received a decision from the Secretary of the DOC.

17 Based on this conflict, at least two inferences are possible. One could infer that the committee reviewed video footage and determined that it supported Jackson's guilt — but that the warden subsequently concluded that the video footage did not actually support guilt and unilaterally removed evidence considered by the committee from the record. Alternately, one could infer that the committee did not view any video evidence at all in conjunction with Jackson's hearing — but that it erroneously reported on the Hearing Decision that a "video" provided physical evidence of Jackson's guilt.

18 During the oral argument, the court asked counsel for the respondents: "You are not going to suggest that this is an ideal record made by the disciplinary committee, the Department of Corrections, or the warden?" Counsel responded: "It is far from ideal."

19 Although the dissent asserts that a review of the sufficiency of the evidence is not the proper analysis for our certiorari review, dissent, ¶ 93, it is the very analysis that Jackson himself raised and advanced in this court after the record was supplemented with the video evidence on remand. See Post-Remand Memorandum of Petitioner Darnell Jackson at 9 ("[T]he video evidence's objective proof that Jackson did not meet with the rioters in the hall immediately before the riot renders the evidence on which the adjustment committee relied legally insufficient.").

The dissent relies in part on due process arguments that Jackson advanced prior to the remand. For example, Jackson initially argued that "[t]he DOC's failure to produce the video as part of the record on certiorari review — or at any time— precluded a fair review by the lower courts and violated Jackson's due process rights." Reply Brief of Petitioner Darnell Jackson at 3 (emphasis added).

This case has evolved now that the record has been supplemented with the video evidence on remand. Post-remand, Jackson has not renewed any argument that a deficiency in the record precludes fair review. Rather, in his post-remand memorandum to the court, Jackson argues:"[N]ow that the DOC has finally produced the video, the parties can meaningfully discuss why that evidence fatally undermines the basis for the disciplinary ruling!.]" Post-Remand Memorandum of Petitioner Darnell Jackson at 3-4. He set forth the remaining three issues: (1) sufficiency of evidence; (2) whether Brady applies and if so, the standard that should be applied; and (3) Lieutenant Zank's participation on the committee. Id. These are the issues we address in this opinion.

20 In a prison disciplinary proceeding, the adjustment committee must find it "more likely than not" that the accused committed the violation. Wis. Admin. Code DOC § 303.76(6)(b). Thus, the DOC's burden is lower than a prosecutor's burden in á criminal trial. Further, an adjustment committee may consider "any relevant evidence, whether or not it would be admissible in a court of law." Wis. Admin. Code DOC § 303.86(2)(a).

21 Although Jackson raised questions about the admissibility of the confidential informants' statements in the circuit court and in the court of appeals, he does not renew those arguments here.

22 At oral argument, his counsel conceded: "The evidence of the two confidential informants alone... , while extremely weak, would under the case law, again, if there was no other evidence, would be sufficient."

23 Although we directed the parties to describe in relevant detail the events depicted in the two-minute clip, the parties' stipulation lacks sufficient detail for us to evaluate Jackson's claim that the video evidence undermines the confidential informants' statements. During oral argument, both parties went beyond the stipulated facts. Although they appear to largely agree on the identities of individuals and events that are depicted in the clip, they argue about what inferences should be drawn from these facts.

Our discussion here relies on Jackson's representations about the individuals and events depicted. Accordingly, we evaluate the video evidence in the light most favorable to his claim.

24 See supra, ¶ 12. At oral argument, the following exchange occurred between counsel for Jackson and the court:

Court: Is it possible that Mr. Jackson could have been walking with them or huddled with [the assailants] before the tape starts or at some time when the camera is not on that group?

Counsel: It is possible that he could have been in the hallway before the tape started, but that would not be "seconds before" [the riot began].

25 Brady v. Maryland, 373 U.S. 83 (1963); Strickler v. Greene, 527 U.S. 263 (1999).

26 The United States Supreme Court has not addressed this question. The Seventh Circuit Court of Appeals has concluded that inmates have a qualified right to the disclosure of exculpatory evidence. See Biggie v. McBride, 277 F. 3d 922 (7th Cir. 2002). We are not bound by the Seventh Circuit's interpretation of the United States Constitution.

27 We are cognizant that a Brady claim is not coextensive with a sufficiency of the evidence claim. Under some circumstances, a criminal defendant may have a valid Brady claim even if there would still be sufficient evidence to affirm his conviction. Strickler v. Greene, 527 U.S. 263, 290 (1999). Under the facts presented by this case, we need not and do not determine whether any version of Brady — limited or otherwise —applies to prison disciplinary proceedings.

28 Although the respondents assert that the warden and the inmate complaint examiner both made findings of fact that Lt. Zank's involvement was not "substantial," that determination is actually a question of law.