B-09-LegalIssues

Legal Issues

Susan is presently involved in several legal challenges. Some of these involve trying to “encourage” the California Department of Corrections and the Board of Prison Terms (the Parole Board) to follow the law. Others are attempts to convince the State and Federal Courts that State employees who deliberately and intentionally violate the law should be held accountable – at the present time California’s Parole Board Members have complete immunity under Federal Law (meaning they can not be held accountable in Federal Court for ANYTHING they do in the parole process) and the State Courts have held that though Susan has legal rights in the parole process there is no law that says the Parole Board has to follow the law.

Included here is Susan’s Writ of Habeas Corpus to the California Supreme Court, which was denied but which documents the essence of the issues she is presently presenting to the Federal Courts.

Habeas Corpus

The right to file writs of Habeas Corpus challenging the Constitutionality of a person's incarceration is a right ensured by the U.S. Constitution. Writs of Habeas Corpus can challenge the Constitutionality of incarceration in innumerable ways; if you were denied a lawyer before or during your trial, if your trial was not legal, if your sentencing was not handled legally, if the State is not giving you medical aid while incarcerated. In Susan’s case we are arguing that the State is not giving her real parole consideration – that they are simply going through the motions and conducting farcical hearings with a predetermined decision and fabricating justifications for their decisions afterward. Since she is being denied her legal and Constitution right to have her suitability for parole determined in a fair and unbiased manner, just like every other American citizen, her incarceration has become illegal.

Unfortunately the Constitutional right to file writs of Habeas Corpus has been cut back to such a degree in the last 20 years that it has been abolished in many situations in everything but name - you retain the right on paper, but in reality there is no relief.

This has become the case with Parole Hearings. In California the Parole Board members are given almost absolute discretion as to whether they determine someone is suitable for parole or not. The Courts in California have decided that since the Parole Board has almost complete discretion in their determinations, the Courts are not going to let inmates challenge the Board's determination by bringing Habeas writs - the Courts have determined that they (the Courts) are not going to "second guess" the Parole Board, they are going to assume that the Parole Board has weighed all the evidence and did it's duty responsibly. Unless the Parole Board gives absolutely no reason to justify it's determination, the Court is going to dismiss the writ.

This is not a bad justification, and in the 1970's, when the Parole Board members were not political appointments, this worked. But what results is a system that leaves the inmate with absolutely no avenue of relief when the Parole Board violates the law. The Court has recently gone so far as to say that the mere fact that an inmate was convicted is sufficient excuse to justify the Parole Board in determining that an inmate is unsuitable for parole, which means that all writs of Habeas Corpus challenging the behavior of the Parole Board will be dismissed.

This means that the Parole Board can break the law with absolutely no fear of ever being brought to court about it.

There is one small possibility though. The Federal Courts have said that inmates have a right under the U.S. Constitution to have real parole hearings, not mere kangaroo-court hearings where the Parole Board members only pretend they are conscientiously trying to determine if the inmate is suitable for parole. In legal terms, the Parole Board members have almost absolute discretion, but they must "act in good faith."

For almost all situations this Constitutional "right" is completely unenforceable (which may be the only reason the Courts have left this "right" standing). It is nearly impossible to prove that a Parole Board member is acting in Bad Faith; they are given almost absolute discretion so all they have to say is "I weighed all the evidence and I just felt this inmate was unsuitable." What's more, the Courts have held that you can't even question the Parole Board members over what they considered in their determination. And even beyond that, simply proving that the Parole Board members broke the law isn't enough, in order to show that they were acting in Bad Faith you have to show that they knew they were breaking the law and did it intentionally.

Only if the Parole Board Members are foolish enough, or arrogant enough, to state on the record that they know what the law is and that they know they are breaking it do you have any chance of proving they were acting in Bad Faith.

Fortunately for Susan, the State has been that foolish and that arrogant.

Unfortunately for Susan, though every Court and even the State itself agrees that inmates have a Constitutional right to parole hearings conducted in Good Faith, no inmate has ever tried to enforce this right. And no Court has actually ever determined exactly how much evidence an inmate needs to present in order to prove that the Parole Board is acting in Bad Faith.

Susan presented a Writ of Habeas Corpus to the State Courts showing documented evidence that the Parole Board was deliberately and knowingly violating the laws asserting that this proved Bad Faith. But the State Courts held that she doesn't have the right to have the Parole Board follow the law in her Parole Hearings. In fact they held that no inmate has the right against deliberate, intentional, knowing violations of law by State employees in their Parole Process.

Susan is now presenting this issue to the Federal Courts.

IN THE CALIFORNIA STATE SUPREME COURT

In re: ) Case No._________

)

) ORIGINAL PETITION

) FOR WRIT OF

SUSAN D. ATKINS, ) HABEAS CORPUS
Petitioner, )

)

On Habeas Corpus )
______________________________)

ORIGINAL PETITION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE CALIFORNIA STATE SUPREME COURT;

Petitioner, Susan D. Atkins, by and through her attorney, James W. Whitehouse, hereby petitions this Honorable Court for Writ of Habeas Corpus and by this verified petition states as follows:

Petitioner Susan Atkins, W-08304 is illegally incarceration and restrained of her liberty at the California Institution for Women (CIW) in Corona, California, by the Governor of the State of California, the Board of Prison Terms (BPT), the Director and Commissioners of that agency, the California Department of Corrections (CDC), by Warden John Dovey, California Institution for Women, and by the California Court System.

II.

          33 years ago, at the age of 21, Petitioner Susan Atkins was involved in a series of crimes in the Los Angeles area, which led to her convictions on eight counts of first-degree murder and one count of conspiracy to commit murder in the Superior Court for the County of Los Angeles; Case Numbers A253156 and A267861.

          Her sentence has been set at 7 years to life, with the possibility of parole. (Order of Superior Court of California, Los Angeles County, & Notice of Legal Status Modified, attached as Exhibit 1)

          Her Minimum Eligible Parole Date (MEPD) was set at September 1st, 1976 (Cumulative Case History, attached as Exhibit 2).

III.

On December 28, 2000, Petitioner Susan Atkins had her sixteenth (16th) hearing before the Board of Prison Terms. (Exhibit 3 - Excerpts of Transcripts) In a Hearing characterized by deliberate violations of law and intentional refusals to follow the law, the BPT held that Ms. Atkins was unsuitable for parole, and set her next parole suitability hearing for January 19, 2005.

IV.

On April 2, 2001, Ms. Atkins submitted an administrative appeal challenging the behavior of the BPT at her 2000 Hearing.
On September, 11th, 2001, the BPT's Appeals Unit denied Ms. Atkins' appeal. (Attached as Exhibit 4) This denial was falsified and generally non-responsive. It evidenced both a deliberate and intentional violation of the law, as well as a deliberate and intentional neglect of duty.

Thus, Petitioner has exhausted all of her administrative remedies.

On March 13th, 2002, Ms. Atkins submitted a Writ of Habeas Corpus to the Superior Court of the State of California, in the County of Los Angeles. (Writ of Habeas Corpus, and State's Return to the OSC, are attached as Exhibits 5, and 6).
Ms. Atkins claimed the State has shown a pattern of violating her Constitutional right to a parole suitability Hearing and process conducted in Good Faith.

On October 21st, 2002, the Superior Court held that Ms. Atkins' Constitutional Due Process right to a Parole Hearing conducted in Good Faith was satisfied by the presence of “some evidence” to support the BPT's determination, apparently even if that evidence was illegally submitted. (Order of the Superior Court of Los Angeles, Re: Writ of Habeas Corpus, attached as Exhibit 7, 1:28-2:5)

VI.

On March 3rd, 2003, Petition for Writ of Habeas Corpus was filed with the Court of Appeals, Fourth Appellate District, Division Two.(fn 1) On April 4th, 2003, the Court of Appeals, Fourth Appellate District, Denied the writ without opinion. (See Exhibit 8, Responses from Appellate Courts)

______________________
(fn 1 - Ms. Atkins' Superior Court Writ, Case No. BH001872, was transferred to Los Angeles County as per the holding of the Second Appellate District, In re Sena (2001) 94 Cal.App.4th 836. Therefore, when the Superior Court denied the writ, a subsequent Writ was filed with the Second Appellate District on January 31st, 2003. Unfortunately, prior to the time Ms. Atkins submitted the writ for review, the Second Appellate District overturned Sena in In re Roberts (2002) 104 Cal.App.4th 151. On February 5th, 2003, Ms. Atkins' Writ, case number B164569, was denied by the Second Appellate District without prejudice to re-file in the Fourth Appellate District (See Exhibit 8, Appellate Court responses).)

VII.

          Petitioner suffers from illegal restraint because (1) the BPT has shown a pattern of acting in Bad Faith in regard to her parole determinations, and (2) the Courts of the State of California have shown an absolute ignorance of the Constitutional right to Good Faith in the parole process, and therefore provide absolutely no process for the correction of such violations.

          The BPT's behavior in regard to Ms. Atkins' 2000 parole process, as well as its behavior since 1985, was hallmarked not by mere “mistakes,” but by deliberate and knowing violations of the law or refusal to follow the law, as well as deliberate and knowing neglect of duty or refusal to fulfill duties and obligations. This is the definition of Bad Faith. These violations have been blatant and unabashed, and in many cases are admitted and documented on the record by the BPT, the BPT Appeals Unit, and the Attorney General's Office.

           Due Process is not satisfied merely by the presence of “some evidence.” It also demands a procedure conducted in Good Faith.

          The California State Court system has completely failed to address this issue - not denying that Ms. Atkins' right to a parole process conducted in Good Faith has been violated, but failing to even recognize that such a right exists.

          Due process demands an avenue of redress for wrongs.

VIII.

          Ms. Atkins will show that there is overwhelming evidence to prove that the BPT has shown a pattern of acting in Bad Faith in regard to her parole consideration, and that the Courts are completely unprepared to deal with inmates' Constitutional right to Good Faith in the parole process.

           The California State Courts need a definitive opinion on this issue to correct them and to protect the Constitutional rights of the people of the State of California who suffer from unregulated incarceration. And Ms. Atkins needs to have these issues addressed in her case and she needs to be set free of a system that is committed, not to providing her with a Constitutional parole suitability process, but is committed to keeping her incarcerated indefinitely regardless of her legal and Constitutional rights.

          Therefore, this original petition for Habeas Corpus is properly filed with the California Supreme Court. (In re Catalano (1981) 29 Cal3d 1, 171)

           No other application for relief had been made in regard to this same Writ. (PC §1475)

IX.

          The attached Memorandum of Points and Authorities are incorporated by reference.

          WHEREFORE, Petitioner respectfully prays the Court will;

1.    Affirm the U.S. Supreme Court's determination that Due Process requires a parole process conducted in Good Faith regardless of “some evidence.”

          Hold, and direct all the Courts of the State of California that the presence of “some evidence” is irrelevant outside a challenge to the evidentiary sufficiency of the Board's decision.

          Hold that proof of deliberate and knowing violation of the law or refusal to follow the law, or deliberate and knowing neglect of duty or refusal to fulfill their duty, is proof of Bad Faith.


2.    Hold that the State's behavior in this case has provided overwhelming proof that they have acted, and show a pattern of acting, in Bad Faith in regard to Ms. Atkins' parole process.

          Specifically, to hold that;

2a.    Governor Deukmejian's signed statements, both as Attorney General and as Governor, exhorting the Parole Board to conduct their duties in a manner which he knew was contrary to the law is a sign of Bad Faith.

2b.    Governor Davis's public declaration that he will conduct his duties in regard to parole in knowing violation of the law, constitutes Bad Faith, regardless of whether or not the Governor has a “no parole policy.”

          And, Governor Davis's public declaration that “if you take someone else's life, forget it,” is a declaration of a determination not based upon the individual case facts, a refusal in advance, and a confession of pro forma reviews, all of which is unconstitutional.

           And, Governor Davis's refusal to conduct a review of Ms. Atkins' Parole Hearing was an intentional and knowing act done with the intent of denying her an essential part of the Parole System, in line with his public statements disavowing the legal parole system, and as such is a sign of Bad Faith.

2c.    When a BPT Panel Member announces half way through a Hearing, before most of the information has even been presented, that the inmate will not get out for another 25 years, this is proof of a pro forma hearing with a predetermined decision, and therefore an unconstitutional Hearing in Bad Faith.

           And that this is a confession on record that every Hearing Ms. Atkins has had up to that point, and every hearing the State will give her in the next 25 years, will be a pro forma hearing with a predetermined decision, and therefore an unconstitutional Hearing in Bad Faith.

2d.    If the BPT deliberately maintains rules and regulations that they know are contrary to State law, this is a sign of Bad Faith, and that;

           BPT Form 1000A & B are contrary to State Law, the BPT knows this, and the BPT Panel at Ms. Atkins' Hearing knew this, and as such it is proof of Bad Faith.

           The BPT's deliberate refusal to determine an inmate's personal culpability is contrary to State law, the BPT Panel at Ms. Atkins' Hearing knew this, and as such it is proof of Bad Faith.

          The BPT's deliberate enforcement of the Administrative Codes in a way they know is contrary to the Penal Code is proof of Bad Faith.

          The California Code of Regulations is only valid to the extent that it does not exceed the authority vested to it by the Penal Code; specifically, suitability can only be withheld by a determination as to present dangerousness in regard to the timing or gravity of current or past offenses.

2e.    The BPT's pattern of deliberately and knowingly giving Ms. Atkins denials which do not tell her what the BPT wants her to do to qualify for parole is proof of Bad Faith.

2f.    The BPT's deliberate maintenance and use of descriptions of the Hinman offense which the BPT knows contradict the Court transcripts in such a way as to increase Ms. Atkins' culpability is proof of Bad Faith.

2g.    The actions of the BPT at Ms. Atkins' 1988 Hearing constituted Bad Faith. Specifically;

          The BPT's determination that Ms. Atkins was a danger to society because she exercised of her legal rights (legal rights the BPT acknowledged), was a deliberate and knowing violation of the law, which is Bad Faith.

          The BPT's determination that Ms. Atkins was a danger to society because she didn't discuss issues the BPT hadn't asked her to discuss due to “lack of opportunity,” was a deliberate and knowing violation of the law, which is Bad Faith.

           The BPT's deliberate production of claims they knew were false in order to justify the denial of parole is proof of Bad Faith.

              The BPT's demand that parole was conditional on participation in programming that the BPT confessed on the record they knew was unavailable, is proof of Bad Faith.

2h.    The actions of the BPT at Ms. Atkins' 1989 Hearing constituted Bad Faith. Specifically;

          The BPT's deliberate production of claims they knew were false in order to justify the denial of parole is proof of Bad Faith.

          The BPT's demand that 17 years of programming was insufficient for a 7-life-term, was a knowing and deliberate perversion of the law, and proof of Bad Faith.

2i.    The actions of the BPT at Ms. Atkins' 1996 Hearing constituted Bad Faith. Specifically;

           The BPT's deliberate use of information they knew was completely and utterly irrelevant to the issue of suitability is not “discretion,” it is Bad Faith.

2j.    The actions of the BPT at Ms. Atkins' 2000 Hearing constituted Bad Faith. Specifically;

           The BPT's deliberate use of the Psychiatric Evaluation they knew was not legally admissible was a knowing and deliberate violation of the law, which is Bad Faith.

          The BPT's use of information it knew was not available to Ms. Atkins, in deliberate and knowing violation of the law, is proof of Bad Faith.

          The BPT's deliberate use of information out of Ms. Atkins' 1996 Psychiatric Evaluation which the BPT knew was false is Bad Faith.

          The BPT's claim that information admitted was contained in Ms. Atkins' Arrest Report was done deliberately and with full knowledge that this was false, which is proof of Bad Faith.

          Not allowing Ms. Atkins to correct past transcripts when the BPT knew they contained information not legally submitted was proof of Bad Faith.

          The BPT's deliberate and knowing falsification of the extent of Ms. Atkins' participation in the LaBianca Offense is proof of Bad Faith.

          The BPT's deliberate use of Ms. Atkins' original death sentence as a reason to set off her next parole hearing for four years, despite their confessed knowledge that this sentence was found to be unconstitutional by the California Supreme Court, is proof of Bad Faith.

          The BPT's deliberate demand that parole is conditional on participation in Group Therapy the BPT knows is unavailable is proof of Bad Faith.

           The BPT's deliberate and knowing practice of telling Ms. Atkins she didn't need to present evidence on additional issues because they weren't relevant to suitability, and then using these issues as evidence of unsuitability, is proof of Bad Faith.

            As per Sturm, one of the reasons for a written decision is facilitate judicial review, and therefore;

            When the Administrative codes list only 8 factors indicating suitability, and Ms. Atkins fulfills all, but the BPT has never once in 30 years and 16 Hearings mentioned even one of them, this is sufficient evidence that the BPT is deliberately and knowingly not considering these factors, and it is proof of Bad Faith.

          When the Penal Code demands that mitigating factors be taken into consideration, and Ms. Atkins' file documents 89 mitigating factors, and the BPT has never in 30 years and 16 Hearings mentioned one of them, this is sufficient evidence that the BPT is deliberately and knowingly not considering these factors, and it is proof of Bad Faith.

2k.    The inaction of the BPT Decision Review Unit after Ms. Atkins' 2000 Hearing, in the face of blatant and obvious errors, is proof of deliberate and knowing neglect or refusal to fulfill their duty, which is Bad Faith.

2l.    The actions of the BPT Appeals Unit in response to Ms. Atkins' Administrative Appeal provide proof of Bad Faith. Specifically;

           The Appeals Unit's knowing and deliberate falsification of their official report, claiming evidence showed Ms. Atkins entered the LaBianca home, is Bad Faith.

           The Appeals Unit's knowing and deliberate falsification of their official report, claiming evidence submitted by the DA was all contained in Ms. Atkins' prison Central File, is Bad Faith.

          The Appeals Unit's refusal to determine that the Psychiatric Evaluation was illegally submitted was a deliberate and knowing neglect or refusal to fulfill their duty, which is Bad Faith.

          The Appeals Unit's decision to allow the BPT to demand Group Therapy from Ms. Atkins despite the fact that the Appeals Unit knows and admits this is illegal, is deliberate and knowing neglect or refusal to fulfill their duty, which is Bad Faith.

           The Appeals Unit's condoning the BPT's use of Ms. Atkins' death penalty as a reason for increasing her punishment, despite the fact that it knows that sentence was determined to be unconstitutional is deliberate and knowing neglect or refusal to fulfill their duty, which is Bad Faith.

          The Appeals Unit's decision that there was nothing wrong with the BPT telling Ms. Atkins she didn't need to present evidence on additional issues because they weren't relevant to suitability, and then using these issues as evidence of unsuitability, is deliberate and knowing neglect or refusal to fulfill their duty, which is Bad Faith.

2m.    The statements of the Attorney General's Office amount to a confession of Bad Faith by the State. Specifically;

          The AG's admission that the State did not determine Ms. Atkins' personal culpability, and does not intend to do so, is a confession of a deliberate and knowing contradiction to the clear and uncontroverted language of the law, which is Bad Faith.

          The AG's admission that the BPT used evidence not contained in Ms. Atkins' Central File and not available to her in deliberate and knowing violation of the law, is a confession of Bad Faith.

           The AG's documentation that the State believes it can use evidence not submitted within the prescribed time limits, in deliberate and knowing violation of the law, is documentation of Bad Faith.

           The AG's statement that the State sees nothing wrong with demanding Ms. Atkins participate in Group Therapy, which the BPT and the AG's Office know is unavailable, is a confession of Bad Faith.

          The AG's documentation that the State condones the BPT's practice of telling Ms. Atkins she didn't need to present evidence on additional issues because they weren't relevant to suitability, and then using these issues as evidence of unsuitability, is documentation of Bad Faith.

          The AG's documentation that the State deliberately maintains claims against Ms. Atkins that they know contradict the State's own recorded testimony in her Court Transcripts, is documentation of Bad Faith.

          The AG's documentation of the behavior of the BPT Appeals Unit is a confession and proof of Bad Faith.

3.    Hold that the California lower Courts have failed to recognize, let alone address, the issue of Good Faith in Ms. Atkins' case. And to hold specifically;

3a.    That the determination of the Superior Court in regard to Ms. Atkins' writ were erroneous.

3b.    That the presence of “some evidence” is merely the beginning of the Due Process inquiry, and that it is entirely irrelevant in any challenge to the BPT except for evidentiary challenges.

3c.    That the Superior Court's use of the Psychiatric Evaluation as “some evidence” sufficient to defeat Ms. Atkins' Writ was error because the admissibility of this document was one of the central issues of contention and the Court made no evidentiary finding that it was, in fact, not inadmissible.

3d.    That the Superior Court's use of the BPT's demand that Ms. Atkins participate in Group Therapy the BPT knows is not available as “some evidence” sufficient to defeat Ms. Atkins' Writ was error because the legality of making impossible demands upon an inmate as a condition of being found suitable was one of the central issues of contention and the Court made no evidentiary finding that this practice was not illegal.

3e.    That the Superior Court was in error in determining that, since an inmate has no Constitutional right to parole, there is no requirement that the State act in Good Faith in regard to their parole suitability hearings.

3f.    That the Appellate Court was in error not to have corrected the Superior Court.

3g.    That this complete failure of the Court System to recognize the fundamental and essential part that Good Faith plays in legitimizing the parole process represents an absolute collapse of the validity of California's parole system and a serious violation to the Due Process rights of all people incarcerated in California.

4.    Hold that the Superior Court should have determined the legal issue in Ms. Atkins' favor and then, since the State had not contradicted the Bad Faith argument, granted the petition for relief.

5.    Hold that the State's moral and legal authority to control the Life and restrict the Liberty of those citizens sentenced to life-with-the-possibility-of-parole is founded upon a presumption that the State officers within the Parole System act with Good Faith.

6.    Hold that a finding that the State has not acted in Good Faith is not the same as, and is incalculably more egregious than, a finding that the State has unintentionally acted illegally.

7.    Hold that a finding of Bad Faith denotes a knowing and deliberate attempt to pervert the legal system and the justice system.

          Hold that such a finding in the Parole System divests the State of any legal or moral authority to determine an inmate's future suitability for parole.

          Hold that when such a finding is made in regard to the Parole System, the burden of showing compliance with the requirement of Good Faith shifts to the State.

          Hold that further Hearings by a State system already found to have a pattern of Bad Faith will not satisfy the burden of showing compliance with Good Faith, and therefore are not a remedy.

8.    Hold that after a finding of a pattern of Bad Faith by the State, the Court has the authority to set Ms. Atkins free, and to hold that this is the only just and viable option. Or,

          Take over the responsibility of holding an evidentiary hearing to determine whether Ms. Atkins would be a present danger to society if released on parole. Or

          Appoint an independent and unbiased body to hold an evidentiary hearing to determine whether Ms. Atkins would be a present danger to society if released.

9.    Hold that the onus for this decision falls squarely on the State for upholding a system of deliberate and knowing violations of the law or refusal to follow the law, and deliberate and knowing neglect or refusal to fulfill their duty.

10.    Hold that Ms. Atkins has documented this pattern of Bad Faith by the available evidence to the extent that an evidentiary hearing is unnecessary.

11.    For such other relief, including costs (Cal. Rules of Ct. §56.4), as the Court deems just.

DATED: _____________ _______________________

JAMES W. WHITEHOUSE
Attorney for Petitioner
Susan Atkins

VERIFICATION

STATE OF CALIFORNIA                ) Case. No.____________
COUNTY OF ORANGE                   )
                           )

I, James W. Whitehouse, declare as follows:

          I am counsel for petitioner in the above-entitled action. The facts alleged are within my knowledge and for that reason declarant makes this verification on petitioner's behalf.

          I was personally present at Ms. Atkins' December 28th, 2000, Parole Suitability Hearing, and took part in that proceeding.
          I have worked with Ms. Atkins in regard to her Administrative remedies, as well as throughout her Habeas process.

          I have read the exhibits attached to this writ, and know the contents thereof.

          I have prepared and reviewed this petition for writ of habeas corpus, and know the contents to be true of my own knowledge.

          I declare under penalty of perjury that the foregoing is true and correct.

          Executed on this _____ day of ______, 2003, at San Juan Capistrano, California.

______________________
JAMES W. WHITEHOUSE

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF ORANGE

I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 32742 Alipaz Street, #65, San Juan Capistrano, California, 92675-4171.

On ________, 2003, I served the foregoing document described as Original Petition for Writ of Habeas Corpus on interested parties in this action by placing the true copies thereof enclosed in sealed envelopes addressed as follows;

Julie L. Garland, Deputy Attorney General
Office of the Attorney General
State of California
110 West “A” Street, Suite 1100
P.O.Box 85266
San Diego, CA, 92186-5266

John Dovey, Warden
California Institution for Women
16756 Chino-Corona Road
Corona, CA, 92880-9508

X       BY MAIL

X      I deposited such envelope in the mail at San Juan Capistrano, California. The Envelope was mailed with postage thereon fully prepaid.

X      (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on ____________, 2003, at San Juan Capistrano, California.

                                           James W. Whitehouse                                                            Signature

ARGUMENT OF POINTS AND AUTHORITIES

STATEMENT OF FACTS

          On December 13, 1972, Ms. Atkins' sentence was set at 7 years to life, with the possibility of parole. (Exhibit 1)

          Penal Code §3041(a)&(b) state that this means that Ms. Atkins will be brought up before the Parole Board one year prior to her Minimum Eligible Parole Date (MEPD) of September 1st, 1976, (Exhibit 2) and that at this Hearing the Parole Board “shall” “normally” set her parole release date. The only Legislative authority the BPT has to continue Ms. Atkins' incarceration past September 1st, 1975, is if they hold a Parole Hearing consistent with Ms. Atkins' legal and Constitutional rights, in which they determine that she is unsuitable for parole. The Constitution demands that these Hearings must be conducted in Good Faith.

          Ms. Atkins had Parole Board review hearings in 1972, 1973, 1974. She has had Parole Suitability Hearings in 1975, 1976, 1978, 1979, 1980, 1981, 1982, 1985, 1988, 1989, 1993, 1996 and 2000. (fn )2 At the conclusion of each of these Hearings the Parole Board has stated that they have determined that Ms. Atkins was unsuitable for parole.

          But in order for Ms. Atkins' continued incarceration to be legal and Constitutional, these Parole Hearings must be conducted in Good Faith.

____________________
(fn2 - Records for a 1977 Parole Board Hearing are missing. The 1977 Hearing was scheduled in 1976 and no documentation is contained in Ms. Atkins' prison Central File to explain whether the Hearing was postponed or whether the transcript of this Hearing was simply lost.)

          Ms. Atkins' BPT Hearings, from at least 1985 until her last Hearing in 2000, have been conducted in Bad Faith.
These Hearings have been hallmarked not simply by mistakes but by deliberate and knowing violations of the law or refusal to follow the law, or by deliberate and knowing neglect of duty or refusal by the BPT to fulfill their duty, and as such they represent the very definition of Bad Faith.
Therefore these Hearings do not satisfy the Legislative or Constitutional mandate, and Ms. Atkins' incarceration has become illegal.

          Following Ms. Atkins' 2000 BPT Hearing, the BPT Decision Review Unit reviewed her hearing. This review is mandatory by law (CCR 15 §2041). The Decision Review Unit chose not to correct any of the violations, and therefore condoned and ratified the behavior of the BPT Panel by its inaction.

          The Governor was given the opportunity to review Ms. Atkins' 2000 Hearing, as per the State Constitution, Article V, Section 5. But in accord with his statements disavowing the legal parole system and the Constitutional rights of inmates, the Governor declined to review Ms. Atkins' 2000 Hearing. This choice, by the highest member of the California Parole System, constituted a ratification and endorsement of the behavior of the BPT Panel and the BPT Decision Review Unit.

          Ms. Atkins then submitted an administrative appeal of her 2000 BPT Hearing, as per CCR 15 §§2050-2056. The BPT Appeals Unit denied Ms. Atkins' appeal in its entirety, explicitly condoning all behavior by the BPT Panel and the Decision Review Unit. (Exhibit 4)

          Ms. Atkins then petitioned the Superior Court for Habeas Corpus relief, claiming the BPT's behavior at her 2000 Hearing and throughout the review process, as well as the BPT's behavior since 1985, has finally risen to the point of providing incontrovertible proof of a pattern of Bad Faith. (Exhibit 5)

          The Superior Court issued an Order to Show Cause, signifying that Ms. Atkins had plead sufficient facts that, if true, would entitle her to relief. (People v. Duvall (1995) 9 Cal.4th 464, 474, Cal Rules of Ct 4.551(c)(1))

          The State acknowledged that Ms. Atkins had a right to a parole process conducted in Good Faith (Return to the OSC, Exhibit 6, 12:6-9), but instead of responding to Ms. Atkins' factually supported assertions of Bad Faith, the State put forth a flawed legal argument that Due Process is satisfied by the recital of “some evidence”. (Return to the OSC, Exhibit 6, 12:12-20)

          The State's argument rests on Superintendent v. Hill (1985) 472 U.S. 445. But the State's reliance is misplaced. Hill was a case involving evidentiary sufficiency and the Court held that “some evidence” was necessary in addition to all other demands of Due Process, not in place of them.
In a case such as Ms. Atkins', where the issue is not whether the State could produce “some evidence” but whether the State was acting in Good Faith, the presence of “some evidence” is irrelevant.

          Unlike the State, the Superior Court correctly interpreted Ms. Atkins' claim as a challenge to the “Good faith actions of the entire California State parole system, from top to bottom, over the last 15 years or more, in regard to her parole eligibility.”(Order re: Writ of Habeas Corpus, Exhibit 7, pg. 1:21)

          By law, the State's Return to the OSC must be responsive to the allegations of the petition. (People v. Duval, Supra, 477, In re Conner (1940) 16 Cal.2d 701, 711)

           The Superior Court should have determined the legal argument in Ms. Atkins' favor and then, because the State chose to put forth an erroneous legal argument instead of responding to Ms. Atkins' factual assertions of Bad Faith, the Superior Court should have granted the Writ without a hearing.

          Instead, the Superior Court chose to deny Ms. Atkins' writ without determining whether the State had acted in Good Faith, content to satisfy itself with the State's assurances that the presence of “some evidence,” even if it includes illegally submitted evidence, is sufficient to defeat any and all of Ms. Atkins' Legal and Constitutional Due Process rights, including her right to a parole determination conducted in Good Faith.

          On March 3rd, 2003, Ms. Atkins filed a Writ of Habeas Corpus with the Court of Appeals, Fourth Appellate District. This Writ was denied without comment on April 4th, 2003. (See Exhibit 8) This would seem to indicate that the Appellate Court does not even recognize a right to “Good Faith.”

II.
THE MERE PRESENCE OF “SOME EVIDENCE” DOES NOT SATISFY DUE
PROCESS, AND IT IS COMPLETELY IRRELEVANT OUTSIDE A CHALLENGE
TO EVIDENTIARY SUFFICIENCY

The State's argument that Due Process is satisfied by the presence of “some evidence” rests on Superintendent v. Hill (supra). (Return to the OSC, Exhibit 6, 12:12-20) But Hill is clearly a case concerning procedural Due Process - specifically and solely; the evidentiary sufficiency required to uphold a decision.

“The issue we address is whether findings of a prison disciplinary board that result in the
loss of good time credits must be supported by a certain amount of evidence in order to
satisfy due process.” (Hill, Id., at 453)

The U.S. Supreme Court went on to hold that Due Process demanded “some evidence” in addition to all the traditional requirements enumerated by the Court, not as a replacement for them.

“Although Wolff [v. McDonnell (1974), 418 U.S. 539] did not require ... a specified quantum
of evidence to support the factfinder's decision... We now hold that revocation of good time
does not comport with “the minimum requirements of procedural due process,” id., at 558,

unless the findings of the prison disciplinary board are supported by some evidence in the
record.” (Hill, Ibid.)

Wolff v. McDonnell (supra) enumerates among the requirements necessarily for Due Process, a process that protects the inmate from arbitrary action by the government (at 558), a neutral and detached hearing body (559), and a process that takes into account the precise nature of the government function involved - in this case a true determination of the suitability of an inmate for parole (560). All of these considerations demand a process conducted in Good Faith. None of them are satisfied by the mere production of “some evidence.”

The California Supreme Court has made the same determination, holding that even if the State has evidence sufficient to deny parole, this does not insulate them from judicial correction for other Due Process violations; in particular, Bad Faith unconstitutional pre-determined decisions.

“The record in the instant case supports an inference that petitioner sold drugs on a large scale.
Under these circumstances, the Authority could have reasonably denied him parole and fixed his
term at maximum when it initially considered his application. Nevertheless, the nature of petitioner's
offense does not justify the Authority's refusal in advance to consider future applications filed by
this petitioner.” [Emphasis in original][In re Minnis, supra, 647 (Legislatively overruled on other
grounds)]

As the California Supreme Court has stated in In re Sturm (1974) 11 Cal.3d 258, 268, it is the proper function of judicial review to ensure that the Board has honored Ms. Atkins' Constitutional rights in a “practical sense,” not merely in form.

As was so succinctly stated by the Court of Appeal, First District;

“...were the Board to determine whether inmates are suitable for parole by flipping a coin, it could
not insulate its proceedings from judicial correction simply by identifying “some evidence” in the
record to support each result.” (In re Ramirez (2001), 94 Cal.App.4th 549, 564)

III.
THE CONSTITUTION DEMANDS GOOD FAITH IN THE PAROLE
PROCESS - THE STATE HAS ALREADY ADMITTED THIS

The case law demanding that the parole process be handled in Good Faith is uncontradicted in this case. (See Return to the OSC, Exhibit 6, 12:6-9)( Sturm, Supra, 268-269, In re Tucker (1971) 5 Cal.3d 171, 179.)

A Hearing conducted in Good Faith means a real, true, unbiased, non-arbitrary and non-capricious, non pro forma hearing - a hearing without a predetermined decision, where the Parole Board members actually read the reports about the inmate, weigh all the evidence including prison behavior, mitigating circumstances, and the inmate's prison reform - where the Parole Board panel does not merely produce a list of post hoc “evidence” to justify their predetermined decision, where the Board Panel makes a reasoned decision based upon the legal factors, and where the Board Panel “shall normally set a parole release date” at the inmate's initial suitability hearing. (In re Rosenkrantz, (2000) 80 Cal.App.4th 409, 427, In re Sturm, Supra., 268, In re Powell, (1988) 45 Cal.3d 894, 901, In re Minnis, (1972) 7 Cal.3d 639, 647, In re Seabock, (1983) 140 Cal.App.3d 29, 36, In re Tucker, Supra., 179, In re Schoengarth (1967) 66 Cal.2d 295, 300, People v. Wade (1959) 53 Cal.2d 322, 338-339, Penal Code § 3041(a), CCR 15 § 2250)

IV.
PROOF OF DELIBERATE AND KNOWING VIOLATION OF THE LAW OR REFUSAL
TO FOLLOW THE LAW, OR DELIBERATE AND KNOWING NEGLECT OF DUTY OR
REFUSAL TO FULFILL THEIR DUTY, ARE PROOF OF BAD FAITH.

“Bad Faith” is defined as a design to intentionally mislead or deceive, or a deliberate neglect or refusal to fulfill a duty. It is a conscious doing of wrong. An affirmative operative with furtive design or ill will. (Black's Law Dictionary, Sixth Edition, referencing Stath v. Williams, Ind. App., 367 N.E.2d 1120, 1124)
The State has not honored Ms. Atkins' legal and Constitutional right to a parole process conducted in Good Faith. Their behavior shows a deliberate and knowing violation of the law or refusal to follow the law, as well as a deliberate and knowing neglect of duty or refusal to fulfill their duties and obligations; this is the very definition of Bad Faith.

V.
THE STATE HAS PROVIDED OVERWHELMING PROOF THAT THEY HAVE ACTED, AND
SHOW A PATTERN OF ACTING, IN BAD FAITH IN REGARD TO MS. ATKINS' PAROLE
PROCESS.

A.    Governor Deukmejian Submitted Signed Statements Disavowing The Legal System Of Parole In Ms. Atkins' Case.

          In 1982, then-Attorney-General Deukmejian produced the signed statement; “I strongly urge that ... [Ms. Atkins and her co-defendants] should, at the very least, pay for their crimes by being imprisoned for the rest of their natural lives.” (Exhibit 9)

          It is assumed that the Attorney General knew the law, (fn 3) and yet his statement is nothing less than an exhortation to the BPT to incarcerate Ms. Atkins until death based solely upon her commitment offense, in deliberate and knowing violation of the law and neglect of their duties. (fn 4) This is Bad Faith.

____________________
(fn 3 - At the time Attorney General Deukmejian signed this statement, CCR 15, which assures Ms. Atkins a fair and impartial hearing where the BPT Members are instructed to take into account and consider a wide range of factors beyond the inmate's crime, was over 6 years old. The Penal Code, §3041, which states the BPT must set Ms. Atkins' parole date based solely upon her lack of present dangerousness was even older. And the case law which assures Ms. Atkins a right to a Board acting in Good Faith (and which the State has already quoted in their Return to the OSC, Exhibit 6, 12:6-9) (Sturm (1974) supra, Tucker (1971) supra) were both over seven years old.
fn 4 - In fact, this plea was made without ever even reviewing Ms. Atkins' post-conviction behavior. Ms. Atkins' prison Central File, which contains all State documentation as to her behavior during her incarceration, can not be viewed without signing for it with the prison Records Department. There is no record of the Attorney General's Office or the Office of the Governor reviewing Ms. Atkins' Central File, or requesting copies of these files, during this time period. )

By 1985, Deukmejian had become Governor, and he set down in writing the “duty” of himself, as Governor, and of the Commissioners he appointed to the BPT. In a letter addressed to the Chairman of the Board of Prison Terms and referencing Ms. Atkins by name, without reviewing Ms. Atkins' record, Governor Deukmejian stated, “As Governor and as a private citizen, I ask the Board to deny parole in [Ms. Atkins' case]... [I]t is our duty to ensure that these people remain behind bars for the rest of their natural lives.” (Exhibit 9) Once again, this is a statement exhorting the people he appointed to the BPT to find Ms. Atkins unsuitable for parole regardless of any consideration other than her commitment offense, in deliberate and knowing violation of the law and the Constitution, and in neglect of their duties. It is a signed confession of Bad Faith.

But Governor Deukmejian was still in office in 1988, which was the year in which California adopted the Constitutional Amendment giving the Governor the power to review and overturn decisions of the Parole Board. (State Constitution, Article V., Section 5)

          Thus, this statement is not merely an exhortation by the Governor to the Parole Board urging them to act in Bad Faith, but a confession of the state of mind of the highest member of California's Parole System in 1988 and 1989  two years that Ms. Atkins was denied parole in extremely adversarial hearings which produced documentation of some of the most incredible and virtually unbelievable Bad Faith behavior by the Parole Board in Ms. Atkins' 33 years of incarceration. (See Sections V., H & I of this Writ)

B.    Governor Davis' Statements And Actions Show A Deliberate And Knowing Violation Of The Law, And Neglect Of His Duty.

1. Governor Davis' Public Statements avowing a commitment to conduct his duties in regard to parole considerations in knowing violation of the law, is proof of Bad Faith.

          In April 1999, Governor Davis stated that he believed “murderers - even those with second-degree convictions - should serve at least a life sentence in prison.” When he was asked whether extenuating circumstances should be a factor in murder sentences, the Governor was blunt: “No. Zero.”

          This is both illegal and unconstitutional for two reasons. First, it is a determination not based upon the facts of each individual case, it is a refusal in advance, and it makes all the Governor's reviews pro forma reviews. This is patently unconstitutional;

“Forbidden are determinations not based in fact upon an entire picture, refusals in advance, or
pro forma hearings which completely disregard the individual prisoner's conduct in prison and
his disposition toward reform. (In re Minnis, (1972) 7 Cal.3d 639, 647.)” [In re Seabock,
Supra., 36]

And second, parole considerations must take into account evidence other than the commitment offense, specifically including extenuating circumstances (In re Sturm, Supra., 268, In re Powell, Supra., 901,

          In re Minnis, Supra., 647, In re Seabock, Supra., 36, In re Tucker, Supra., 179, In re Schoengarth, Supra., 300, People v. Wade, Supra. , 338-339).

          The Constitutional provision which gives the Governor power to review BPT decisions clearly states that he may only act on the basis of the same factors as the BPT uses. (California Constitution, Article V, Section 5) These factors include extenuating circumstances. (PC §3041(a), CCR 15 §§2281(b),(c)&(d))

          In addition, the Governor's review of BPT decisions survived Ex Post Facto challenge in part through the understanding that the Governor was to use the same criteria as the BPT - those criteria that demand that he take into consideration extenuating circumstances. (Johnson v. Gomez (1996), 92 F.3d 964, 967) (fn 5) His stated commitment to not do this is a confession of Bad Faith.

          Plainly put, it is impossible to see how the Governor's public commitment to seeing that those convicted of murder are never released doesn't constitute the very definition of a Bad Faith commitment to pro forma determinations conducted with a predetermined decision.

          Governor Davis further expanded “They must not have been listening when I was campaigning... If you take someone else's life, forget it. . . . We are doing exactly what we said we were going to do."
____________________
(fn 5 - “Johnson argues that... the purpose and effect of the law here is to lengthen prison terms by making it more difficult for convicted murderers with indeterminate sentences to be released on parole. However, ...the governor must use the same criteria as the BPT. The law, therefore, simply removes final parole decisionmaking authority from the BPT and places it in the hands of the governor. ... We therefore conclude that the application of Proposition 89 to authorize the governor's review of Johnson's grant of parole did not violate the Ex Post Facto Clause.” [Johnson, Supra, 967])

          The 'We' that the Governor was speaking of was himself and his personally appointed BPT commissioners - they are the only two administrative bodies authorized to determine parole suitability. The Governor is confessing to a policy, intent, commitment, and conspiracy by himself and the BPT to deny the Constitutional rights of a discrete minority of politically unrepresented California taxpayers and citizens, of which Ms. Atkins is a member. This is Bad Faith.

          The Governor has never disavowed these statements.

2. The Governor's Refusal To Conduct A Review Is Further Proof Of His Commitment To Abuse The Legal Parole System

          Governor Davis did not review Ms. Atkins' 2000 Hearing. The State has since claimed that he does not have to do so. (Return to the OSC, Exhibit 6, 30:21) (fn 6)

          Though much has been made of whether or not the Governor has a “no parole” policy, the sole issue here is whether the Governor's decision to not review Ms. Atkins' hearing was made in Bad Faith. Considering that the Governor was given only two facts in connection with Ms. Atkins' hearing upon which to make his decision - her name and the fact that she'd been denied suitability - indicates that he didn't care whether her hearing was conducted properly, as long as “Susan Atkins” was “Denied.” This is Bad Faith.
____________________
(fn 6 - It was the Parole Board who agreed to Ms. Atkins' request that they forward her decision to the Governor for review (2000 BPT Transcript, Exhibit 3, 90:12), so their admission that they failed to do this is in itself proof of the BPT's Bad Faith.)

          But the Court in Johnson v. Gomez, Supra, upheld the Constitutionality of the Governor's review on the belief that it was not another obstacle for parole, but simply a higher level of review. In fact, the Court went on to say that the decisions that the BPT panel members make are now based upon their belief that the Governor will perform a final review. (Johnson, id., 967) (fn 7) In which case, the Governor's refusal to review Ms. Atkins' hearing was a denial to her of an essential part of the Parole Suitability System. This is Bad Faith.

C.    The Statement of BPT Presiding Commissioner Castro is Proof of a Commitment To Act In Bad Faith

          In 1988, Presiding BPT Commissioner Castro stated to Ms. Atkins on the record that she would be so old before they let her out that she would need Social Security. He then asked if her husband would be willing to wait “a life time.” (Excerpt 1988 Transcripts, Exhibit 10, p. 123:10-24) At the time of her 1988 hearing Ms. Atkins was 40 years old, so the BPT was stating on the record that they had already made a pre-determined decision that she would not be released for at least another 25 years, or until 2013. That would be 38 years past her Minimum Eligible Parole date.

          In addition, this statement on the record in the middle of Ms. Atkins' Hearing is a blatant confession that Ms. Atkins' 1988 Parole Hearing was a pro forma event where the BPT was “going through the motions” and reciting post hoc justifications for their outcome (it being axiomatic that if the BPT had determined that Ms. Atkins would not be released before 2013, the outcome of her 1988 hearing was a foregone conclusion), all of which is blatantly unconstitutional. This was a deliberate and knowing violation of the law, and a deliberate neglect of duty.

          Like the Governor's statement, this is a blatant confession of Bad Faith.
____________________
(fn 7 - “Johnson's case is like Dobbert, where the petitioner could only speculate whether the jury would have imposed a life sentence had it possessed the final power to decide. [Dobbert v. Florida, 432 U.S. 282] at 294 & n. 7, 97 S.Ct. at 2299 & n. 7. Here, because the BPT's parole decision is not final until after the expiration of the thirty-day gubernatorial review period, it cannot be said with certainty that the BPT would have granted Johnson parole had it possessed the final review authority.” (Johnson, Supra, 967))

          It is also a confession that every Hearing Ms. Atkins had been given up to that time was an unconstitutional pro forma hearing with a predetermined denial. It was also a confession that every hearing Ms. Atkins would have up until 2013 would be an unconstitutional pro forma hearing with a predetermined denial.

          This is the definition of a Due Process violation as well as Bad Faith.

D.        The BPT Knowingly and Deliberately Maintains Rules And Regulations That They Know Are Illegal

          The BPT has deliberately constructed, maintained, and enforced rules for parole suitability that they know contradict California Law. This is Bad Faith.

1. Form 1000A & B Contradict the Law, and the State Knows This.

          The BPT Rules and Regulations, written as BPT Forms 1000A and 1000B (Attached as Exhibit 11), contradict California State Law.

          Foremost, they claim that an indicator of an inmate’s unsuitability for parole is whether "the offense" was carried out in an especially heinous, atrocious, cruel and/or callous manner. This is a deliberate alteration of California State law, Title 15, §2281(c)(1), which states that circumstances tending to show unsuitability include whether "the prisoner" committed the offense in an especially heinous, atrocious or cruel manner. The dangerousness of an individual convicted with a conspiracy charge cannot be determined by how the crime was carried out except with respect to the individual's personal actions. (fn 8)

____________________
(fn 8 - The Penal Code states that an inmate's present dangerousness to society is the sole determiner of suitability. (PC 3041(b)))

While Ms. Atkins is legally culpable for the actions of her co-defendants, the actions of her codefendants do not make her presently dangerous. (fn 9) (1993 BPT Transcript, Exhibit 12, 110:11, 13, 15, 1996 BPT Transcript, Exhibit 13, 90:12, 92:8, 2000 BPT Transcripts, Exhibit 3, 104:13, 16, 17, 105:10-17, 107:25, 108:2, 3, 109:1-4)

BPT Form 1000A states that the BPT should determine whether the offense was carried out in a manner which demonstrated disregard for human life. This is a gross and deliberate alteration of California State Law, CCR Title 15 § 2281(c)(1)(D), which says that the BPT is to look at whether the offense was carried out in a manner which demonstrated “exceptionally callous disregard for human suffering.” All killings show a disregard for human life. This deliberate misstatement of the law makes it impossible for the BPT not to determine that an inmate is unsuitable for parole, in deliberate disregard for Legislative intent. (Rosenkrantz,(2000) supra, 425, In re Dannenberg, Attached as Exhibit 27, p. 10) (fn 10, 11), (1993 BPT Transcript, Exhibit 12, 110:14, 2000 BPT Transcript, Exhibit 3, 104:18, 108:4)

____________________
(fn 9 - “...the Board's only unsuitability findings were (1) that the commitment “offense was carried out in [an] especially cruel or callous manner,”... and (3) that “the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering.” The first and third findings are insufficient because... (as the superior court noted) it would necessarily apply to every second degree murder. (People v. Summers (1983) 147 Cal.App.3d 180, 184-185, ...People v. Matta (1976) 57 Cal. App.3d 472, 480-481, ...People v. Beyea (1974) 38 Cal.App.3d 176, 188-189...; see also CALJIC no. 8.31.) [Rosenkrantz, (2000) Supra, 425]
fn 10 - “[The Board] found that the 'offense was carried out in a manner which exhibits a callous disregard for the life and suffering of another.' (Of course, all second degree murders by their nature involve a disregard for the life of another.) The regulations word this factor slightly different.” [emphasis in original] [Rosenkrantz (2000), Supra, FN 13, quoting the March 1999 Superior Court decision.]
fn 11 - The Dannenberg decision is out of the Superior Court of the County of Marin and is included not for precedent, but to show that the State was well aware of the effect of their alteration of the Penal Code. “Previously decided cases are surely a factor to consider in determining if the government's position is reasonable. H.R. Rep.No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S. Code Cong. and Ad.News, pp. 4989-90. ... The more often an issue is decided against the government the more unreasonable advancing such a claim again will be.” (Hoang Ha v. Schweiker (1983), 707 F.2d 1104, 1106))

BPT Form 1000A states that the BPT should determine whether the prisoner carried out the offense in a dispassionate and/or calculated manner. This is a gross and deliberate alteration of California State Law, CCR Title 15 § 2281(c)(1)(B), which says that the BPT is to look at whether the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder. All first-degree murders are “calculated,” that is the definition of first degree murder. This misstatement of the law allows the BPT to determine that all first-degree murders make an inmate unsuitable for parole, in deliberate disregard of Legislative intent. (1993 BPT Transcript, Exhibit 12, 110:16-17, 1996 BPT Transcript, Exhibit 13, 90:14-15)

Consider also that BPT Form 1000A, Section 2 concerning any previous criminal record the prisoner might have, allows the BPT to determine that “prior criminality” can be used to determine that an inmate is not suitable for parole. But this is an incredible misstatement of California State Law. California Law stresses criminality in the form of violence or assaultive behavior, escalating criminal conduct or violence, sexual assaultive behavior, or a persistent pattern of criminal behavior (CCR Title 15, 2281(c)(2), (d)(1)&(5)), it does not indicate that simply the presence of any previous criminal behavior is sufficient to find someone unsuitable.

          Category 6 and 7 of Section 2 are simply a means of using the inmate's previous criminal record against them while eliminating the unambiguous requirement expressed in California Law for aggravating circumstances. (fn 12) (1993 BPT Transcript, Exhibit 12, 111:10-15, 112:24, 2000 BPT Transcripts, Exhibit 3, 105:20)

          In addition, BPT Form 1000A Section 2 states that an indicator of unsuitability for parole includes whether an inmate has “failed to profit from society's previous attempts to correct his/her criminality.” But this is simply another way of circumventing clear legislative intent. The legislature expressed exactly what sorts of previous criminal history they meant to be relevant to determinations of parole suitability; criminality in the form of violence or assaultive behavior, escalating criminal conduct or violence, sexual assaultive behavior, or a persistent pattern of criminal behavior. And yet an inmate with any history of criminal behavior at all before their present incarceration will be said to have “failed society's attempts to correct her behavior,” thereby making her unsuitable for parole. (Exhibit 3, 2000 BPT Transcripts, 105:20, 1996 BPT Transcripts, Exhibit 13, 91:1-12, 1993 BPT Transcript, Exhibit 12, 111:7-8,)

          As the California Supreme Court stated in Minnis, supra, “This court has traditionally accepted its responsibility to prevent an authority vested with discretion from implementing a policy which would defeat the legislative motive for enacting a system of laws.” [In re Minnis, supra, 646, see also, In re William M. (1970) 3 Cal.3d 16]
The BPT has clearly reached the point that this is what they are doing.

          But the Rosenkrantz decision, which condemns the BPT for changing the statutory wording such as to make it impossible for the BPT not to find an inmate unsuitable (See FN 10), came out in March 1999, and the Court of Appeals decision came

____________________
(fn 12 - In 2000, the BPT determined that Ms. Atkins would be a threat to society if released on parole, in part because she possessed a fake driver's license while on probation thirty-three (33) years earlier - a crime for which she was punished with a three dollar ($3) penalty. (Exhibit 3, at 105:20))

out in April 2000, eight months before Ms. Atkins' December 2000 BPT Hearing, and still the BPT had not changed their Form 1000A. This shows a deliberate and knowing violation of the law and neglect of duty. This is Bad Faith.

          In addition, as late as the State's Return to the OSC, 9-10-02, the State still insists that the BPT's Forms 1000 do not contradict the Law. (Exhibit 6, 26:1-12) The State's continued defense of these regulations even after judicial correction is, in itself, proof of Bad Faith. (See FN. 11)(Hoang Ha v. Schweiker (1983), 707 F.2d 1104, 1106)

            But the BPT panel at Ms. Atkins' Hearing knew that the BPT Rules and Regulations they were using misinterpreted the law - Ms. Atkins' attorney pointed this out to them at length. (2000 Hearing Transcript, Exhibit 3, 65:10-18, 66:9-12, 66:24-67:2, 72:15-73:8) Their choice to neglect their duty and violate the law was done knowingly and deliberately. This is Bad Faith.

2. The BPT Knowingly Violates The Law In Regard to Determining Ms. Atkins' Personal Culpability.

          The BPT allowed the District Attorney to present evidence as to the alleged behavior of Ms. Atkins' co-defendants (2000 BPT Hearing Transcript, Exhibit 3, pages 38-41). Although Ms. Atkins is legally culpable for the actions of her co-defendants by way of the conspiracy conviction, the actions of her co-defendants do not make Ms. Atkins presently dangerous.

          CCR 15 §§2236, 2281(b), 2281(c)(1), 2270(d) all demand that when the BPT considers the crime in relation to an inmate's suitability, it shall be discussed with the intent of determining the extent of the prisoner's personal culpability.

          The BPT held that “the offense” was carried out in a “violent, ruthless and vicious manner” (2000 Transcript, Exhibit 3, 104:13), that “the offense” was carried out in an insensitive manner and the offense was carried out in a manner which demonstrates a disregard for human life (2000 Transcript, Exhibit 3, 104:15), that “the offense” was carried out in an insensitive manner and “the offense” was carried out in a manner which demonstrates an exceptionally callous disregard for human life (2000 Transcript, Exhibit 3, 108:1).

          The BPT also determined that Ms. Atkins was unsuitable (presently dangerous) (2000 Transcript, Exhibit 3, 105:14), and that it was not reasonable to expect that parole would be granted during the next four years (2000 Transcript, Exhibit 3, 109:1), because blood was used to write slogans on the walls of Mr. and Mrs. LaBiancas' residence. But the BPT knew that Ms. Atkins never entered the LaBianca residence.

          The BPT panel knew the law and they knew that the BPT Rules and Regulations misstated the law - Ms. Atkins' attorney made a point of showing them this during the Hearing (2000 Transcript, Exhibit 3, 65:10-21). The Panel's choice to violate the clear language of the law and to neglect their duty was done knowingly and deliberately. This is Bad Faith.

3. The BPT Knowingly Gives Greater Weight To The California Code of Regulations Than To The Penal Code.

          The State has confessed that they deliberately and knowingly enforce regulations against inmates without determining whether the regulations bear any relationship to the Penal Code's demand that suitability be determined by present

dangerousness. (Return to the OSC, Exhibit 6, 25:8-16) (fn 13) But CCR 15 was promulgated under the authority vested in the Penal Code, so to the extent that CCR 15 conflicts with the Penal Code, it is not valid. [Government Code §11342.2] Therefore the regulations are only valid to the extent to which they bear relevance to an inmate's present dangerousness to society.

This dogged pursuit of illusory “evidence” to justify predetermined decisions, without any interest in the actual assessment of dangerousness (which is what PC §3041(b) demands) is a hallmark of the State in regard to Ms. Atkins' parole suitability determinations. Discretion does not give the BPT the right to violate the clear legislative intent. This is Bad Faith.

4. The BPT Knowingly Enforces The California Code of Regulations Beyond The Authority Vested To It By The Penal Code.

Penal Code §3041(b) states that the BPT “shall” set an inmate's release date unless it determines that they pose a present danger to society in regard to their crime.

“The panel or board shall set a release date unless it determines that the gravity of the current
convicted offense or offenses, or the timing and gravity of current or past convicted offense or
offenses, is such that consideration of the public safety requires a more lengthy period of
incarceration for this individual, and that a parole date, therefore, cannot be fixed at this meeting.”
[emphasis added]

____________________
(fn 13 - “Thus, by definition under the regulations, if the Board determines that the factors demonstrating unsuitability [in CCR 15 §2281(c)] outweigh the factors tending to show suitability [in CCR 15 §2281(d)], it is a determination that the inmate remains a present danger to society.” (Exhibit 6, 25:8-16))

          The Penal Code does not authorize or vest the California Code of Regulation with authority to determine that an inmate is unsuitable outside considerations related to the timing or gravity of current or past convicted offenses.

          At Ms. Atkins' 2000 Hearing, the BPT determined that she would be a present danger to society if released on parole because they claim she had a history of tumultuous relationships (2000 BPT Transcript, Exhibit 3, 105:17), they claim she has “psychiatrically [sic] deteriorated slightly to [sic] the interval of three years ago [sic]” (106:11), she wrote a personal letter on a school computer seven years earlier and she was found to be carrying a twenty dollar bill eighteen years earlier (106:14), they claim she dropped out of an incest survivor therapy group (106:15), they claim she deflects problems away during conversation (106:20), and they claim she needs more treatment to help her “focus and concentrate on the issues at hand and to become less defensive” (106:22).

          None of these concerns fall under the authority vested by the Penal Code upon the Code of Regulations - none of them has to do with the timing or gravity of current or past convicted offenses - and so, as excuses to find Ms. Atkins unsuitable, they contradict the Legislative intent of the law.

E.    The Board Refuses To Tell Ms. Atkins What It Expects Of Her As A Condition Of Being Found Suitable, Which Is Proof Of Bad Faith.

          There must be some humanly achievable behavior that the State will accept as proof that Ms. Atkins is suitable for parole. If there is absolutely nothing they will accept as proof then all her Hearings, past and future, will be followed by a predetermined denial. Period. That is unconstitutional. (In re Minnis, Supra, 647)

          Therefore the State must admit that there is something that Ms. Atkins can do (in fact, something she could have achieved by 1975) that would convince them that she is suitable for parole.

          The State must then admit that they have a duty to tell Ms. Atkins what that is. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 15-16 [Nebraska parole procedures held constitutional because, among other things, they communicate “the reason for the denial as a guide to the inmate for his future behavior. See Franklin v. Shields [(1977) 569 F.2d 784, 800(4th Cir. en banc)]” and “when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances.”] Sturm, supra, 268-269 [a statement of reasons used to deny or grant parole is required to allow inmates to make an informed application for relief (i.e. - to determine if the State is acting in Good Faith) and to facilitate judicial review.]

          At every Hearing Ms. Atkins has ever had the BPT has told her that all her good behavior is not enough to outweigh her commitment offense, but they have never told her what behavior they expect from her that will be accepted as outweighing her commitment offense. (1993 BPT Transcript, Exhibit 12, 112:11-13, 1996 BPT Transcripts, Exhibit 13, 91:20-21, 2000 BPT Transcripts, Exhibit 3, 107:19-21)

          As such, Ms. Atkins has no idea how she is falling short of qualifying for parole, other than by her inability to travel back in time and change her commitment offense.

          What's more, at thirteen (13) of Ms. Atkins' sixteen (16) BPT Hearings she did everything the State demanded of her, and still they determined that she was unsuitable for parole. This in itself is proof of Bad Faith; either the State is deliberately not telling her what behavior they expect from her, or they have determined that they will accept absolutely nothing as proof of her suitability. (See Exhibit 14, list of demands by the BPT since 1972)

F.    The Board deliberately Maintains Descriptions Of Ms. Atkins' Commitment Offense Which They Know Contradict The Court Transcripts of Her Guilty Plea.

          When Ms. Atkins noted that the BPT's description of her participation in the Hinman crime did not reflect her Court Transcripts, she found that it was quoted out of a 1971 Counselor's Social Evaluation Report (see Court Transcripts from Hinman Case, Exhibit 15, and Counselor's Social Evaluation Report Exhibit 16).

          Ms. Atkins contacted the Institution's Records Department to get her 1971 Counselor's Report's corrected but was told the Counselor's Report reflected the Probation Officer's Report, and so they weren't going to change it. (Letters from CIW's Records Department, Exhibit 17)

          Ms. Atkins attempted to have the BPT correct their version of the Hinman case to reflect the Court Transcripts but was told their version was taken from the Probation Officers Report. They told her she had to go through her Institution to have it removed, or through the Probation Office to have it corrected. (Letter from the BPT, Exhibit 18)

          Ms. Atkins attempted to get the L.A. Probation Office to correct the document but was told the L.A. County Probation Department has no policy for changing a Probation Officers Report. (Letter from the LA County Probation Office, Exhibit 19)
The fact that the BPT puts Ms. Atkins in this no-win situation despite the fact that they've known all along that the Counselor's Report and the Probation Office Report contradict the Court Transcripts is knowing and deliberate Bad Faith.

          The State still defends their use of the Probation Officers Report's version of the crime to this day. (fn 14)

          But Ms. Atkins' Court Transcripts are not the transcripts of an adversarial trial where the State can chose which testimony it wants to believe. They are the transcripts of Ms. Atkins' guilty plea - a plea that all parties accepted based upon the stipulated facts. The State can not now, after accepting the plea, change the extent of culpability they claim Ms. Atkins plead guilty to.
This deliberate and knowing violation of the plea the State itself accepted is Bad Faith.

G.    Actions of the BPT Panel at Ms. Atkins' 1988 Hearing Prove Bad Faith

1.    Claiming Ms. Atkins Was a Threat to Society Because She Exercised Her Legal Right Not to Discuss Her Commitment Offense is Bad Faith.

          In Ms. Aktins' 1988 hearing she was denied parole suitability in part for refusing to answer questions by the Board concerning her commitment offense. The Board then documented on the record that they knew she had the legal right to refuse to do so. (1988 Transcript, Exhibit 20, 144:20)

          This is documented knowing and deliberate violation of the law, which is Bad Faith.

____________________
(fn 14 - See Exhibit 6, the State's Return to the OSC, 7:3-8. Note that the State not only had the Court Transcript of Ms. Atkins' guilty plea at the time they wrote their Return to the OSC, but they included it as an Exhibit with their Return.)

2.    Claiming Ms. Atkins Was a Threat to Society Because She Couldn't Telepathically Determine What the BPT Panel Wanted Her to Discuss Is Bad Faith.

          In Ms. Atkins' 1988 hearing she was denied parole suitability in part because she hadn’t disputed the findings of the Board’s psychologist. The Board then documented on the record that they hadn't made it clear this is what they expected “during the hearing because of lack of opportunity.” They also documented that they knew she had a legal right not to discuss these issues. (Exhibit 20, 144:22-27)

          This was done knowingly and deliberately, and is blatant and unabashed Bad Faith.

3.    The BPT Falsified Their Findings to Justify Their Decision.

          Despite having no prior history of violence at all, the Board stated that Ms. Atkins had an “escalating pattern of criminal conduct and violence.” (Exhibit 20, 142:27)

          In order to support this claim, the Board made up a fictional conviction for “threats of violence.” (Exhibit 20, 143:2-3)

          In addition, they announced that she showed a “persistent pattern of ... criminal behavior which commenced at an early age,” (Exhibit 20, 143:3-5) despite the fact that the BPT knows that Ms. Atkins had never been in any trouble at all until she was 18.

          The deliberate and knowing falsification of evidence is not only a showing of Bad Faith, it is a criminal offense.

4.    The BPT Demanded Ms. Atkins Participate In Programming That They Knew Was Unavailable.

          Board denied Susan suitability, in part, for not participating in one-on-one therapy. The Board then documented on the record that they knew this wasn’t available. (Exhibit 20, 143:21)

          This is knowing and deliberate Bad Faith.

H.    Actions of the BPT Panel at Ms. Atkins' 1989 Hearing Prove Bad Faith

1. The BPT Falsified Their Findings to Justify Their Decision.

          In Ms. Atkins' 1988 and 1989 Hearings, the Board determined that she was unsuitable for parole because, among other things, they claimed she had “failed to demonstrate evidence of positive change since incarceration.” (1988 Transcript, Exhibit 20, 143:23-26, 1989 Transcript, Exhibit 21, 135:2-3) At the time the BPT made these statements they had in their possession ten (10) Psychological Reports to the BPT, eleven (11) Counselor Reports to the BPT, and eight (8) Board Hearing Decisions, all of which documented or commended Ms. Atkins for her positive change since incarceration. (see Exhibit 29)
This violation of the law was done deliberately and knowingly, and was blatant Bad Faith.

          In 1989, as in 1988, despite having no prior history of violence at all the Board once again claimed that Ms. Atkins had an “escalating pattern of criminal conduct and violence.” (See 1989 BPT Decision, Exhibit 21, 134:4-6)

           This production of false “evidence” to justify their decision was done deliberately and knowingly, which is Bad Faith.

2. The BPT Demanded More Than 17 Years of Programming on A Seven-To-Live Sentence.

          In Susan’s 1989 hearing, she was denied suitability in part because the Board claimed that her program was “not of long duration.” (Exhibit 21, 135:8) Susan was sentenced to 7-to-life, and at the time the Board made this statement she had been programming for 17 years. This was deliberate and knowing Bad Faith.

I.        Actions of the BPT Panel at Ms. Atkins' 1996 Hearing Prove Bad Faith.

          In Susan’s 1996 hearing, the Board listed among the reasons for denying her suitability the fact that she was molested as a child, the fact that her parents were alcoholics, and the fact that her mother died when she was 14. (1996 Transcript, Exhibit 13, 90:26-91:4)

          The Board knew that this information was completely irrelevant to suitability. The deliberate recital of “evidence” completely and utterly irrelevant to the issue of suitability is not an act of “discretion,” it is Bad Faith. (fn 15)

J.    Actions Of The BPT Panel At Ms. Atkins' 2000 Hearing Prove Bad Faith.

1. The BPT Deliberately Used Evidence they Knew was Illegally Submitted.

          Psychiatric Evaluations must be given to the inmate at least fifteen (15) days prior to the Hearing (Department Operating Procedure §62090.13, attached as Exhibit 28), and all documentation to be used at the Hearing must be available to the inmate at least ten (10) days prior to the week of the Hearing (CCR 15 §§2247). Ms. Atkins was not given a copy of her Psychiatric Evaluation until seven (7) days prior to her Hearing, four (4) days prior to the week of the Hearing.

____________________
(fn 15 - The BPT has since admitted that past abuse suffered by an inmate is not relevant to suitability. (see Exhibit 22, Memo from the BPT))

The Board Members knew Ms. Atkins was not given the Report as legally demanded (2000 BPT Transcript, Exhibit 3, 22:10-16), and they knew this was a violation of the law because Ms. Atkins' Attorney told them. (Exhibit 3, 21:23 - 22:18)
The State claims the document was admissible none-the-less because it was not a Psychiatric Report.

This is despite the fact that 1) The Document was submitted to the Parole Board by the CDC as Ms. Atkins' Psychiatric Evaluation 2) The document in question was titled "Psychiatric Evaluation for the Board of Prison Terms," 3) it was signed by a Psychiatrist, 4) it was contained in the section for Psychiatric Reports in the BPT Hearing Packet, 5) BPT Presiding Commissioner Angele was given proof that the document was given to Ms. Atkins by the Department of Corrections as her Psychiatric Report, 6) Deputy Commissioner Richardson used the document for it's psychiatric conclusions, 7) Commissioner Angele called it a Psychiatric Report when he used its psychiatric conclusions to find Ms. Atkins unsuitable. And 8) Commissioner Angele called it a Psychiatric Report when he used its psychiatric conclusions to find that it was unreasonable to expect that parole would be granted during the next four years. (fn 16)
____________________
(fn 16 - Since Ms. Atkins' 12-28-00 BPT Hearing, the BPT's own Appeals Unit acknowledged the document as a Psychiatric Report (Appeals Unit Response, Exhibit 4, p.4), The Attorney General's Office has quoted psychiatric conclusions out of the document (Return to the OSC, Exhibit 6, 17:22-27, 22:23-25), and the Superior Court has acknowledged the document as a Psychiatric Report and quoted its psychiatric conclusions (Order Re: Writ of Habeas Corpus, Exhibit 7, 3:4-5))

          But even if for the purpose of argument Ms. Atkins does not contend the State's incredible assertion that this is not a Psychiatric Evaluation, the Report was still admitted in knowing and deliberate violation of CCR 15 §2247. This is Bad Faith.

2. The BPT Deliberately Used Evidence They Knew was Not Available to Ms. Atkins, In Violation of the Law.

          Ms. Atkins has a right to have only evidence in her prison Central File used at her Hearing (CCR 15 §2030(c), §2030(d)(2)), and only evidence available to her (CCR 15 §§2235, 2247)(Jancsek v. Oregon Board of Parole (1987), 833 F.2d 1389, 1390 (9th Cir.) quoting from Pedro v, Oregon Parole Board (1987), 825 F.2d 1396, 1399 (9th cir.)). The BPT allowed the DA to bring up evidence not available to Ms. Atkins and not in her Central File over four different objections during her Hearing. (2000 BPT Transcript, Exhibit 3, 34:24-25, 36:27, 37:11, 38:27-39:3)

          What's more, the BPT knew the evidence submitted by the DA wasn't in Ms. Atkins' Central File because they reviewed the entire file prior to the Hearing. (2000 BPT Transcript, Exhibit 3, 3:18)

          But more incredibly, the DA admitted on record that the information was not out of the Central File (Exhibit 3, 34:26-27, 38:2-4), and at one point even blatantly stated that he didn't intend on complying with Administrative Code §2030(d)(2) which states that the DA should cite the documentation in the file (Exhibit 3, 39:4-20). The BPT none-the-less overruled four different objections and allowed the DA to continue. (Exhibit 3, overruled at 36:1, 37:4, 38:8, 39:21)

          This is a deliberate and knowing violation of the law, as well as a deliberate and knowing refusal to fulfill their duty, which is Bad Faith.

          The State has since admitted the facts submitted by the DA and used by the BPT were not in Ms. Atkins' Central File, in violation of CCR 15 §§2030(c), 2030(d)(2), 2235, and 2247. (Return to the OSC, Exhibit 6, FN 2)

          Thus, even the State has confessed the BPT acted in Bad Faith.

          The State provides a further confession that the BPT Panel not only allowed the submission of these facts illegally, but that they illegally considered them in their decision (Return to the OSC, Exhibit 6, 13:22-24, FN 8).

3. The BPT Deliberately Used Evidence They Knew Was False.

          The BPT Panel claimed that Ms. Atkins was unsuitable for parole because her 1996 Psychiatric Report stated that she had been discharged from a Therapy Group for failure to attend. (2000 Transcript, Exhibit 3, 106:12) But the BPT knew that this was due to a clerical mistake by the doctor. (Exhibit 23, Medical documentation submitted to the BPT by Ms. Atkins' attorney prior to her 2000 Hearing, including cover letter and postal receipt)

          Discretion to weigh evidence does not mean discretion to use evidence the BPT knows is false. This information was deliberately used despite the fact that the BPT knew it was wrong. This is Bad Faith.

4. The BPT Knowingly Falsely Claimed Evidence Admitted was Contained in Ms. Atkins' Arrest Report.

          The BPT allowed the admission of evidence unavailable to Ms. Atkins, over her objection, because the they claimed it was contained Ms. Atkins' Arrest Report (2000 Transcripts, Exhibit 3, 37:24). But Ms. Atkins doesn't have an Arrest Report, and the BPT Commissioners are well aware of this because they've reviewed Ms. Atkins' Central File (Exhibit 3, 3:18).

          The deliberate production of a claim the BPT knows is false in order to justify the admission of inadmissible evidence is proof of Bad Faith.

5. The BPT Deliberately Did Not Allow Ms. Atkins To Correct Past Transcripts They Knew Contained Illegally Submitted Evidence.

          When Ms. Atkins attempted to challenge errors in her past Hearing Transcripts during her 2000 hearing, the BPT members told her that they could not judge whether the information she was challenging was incorrect because they weren't at her past hearings (2000 Transcript, Exhibit 3, 35:1-36:1). When she contacted the BPT after her hearing and tried to challenge this information (under the Information and Practices Act), the BPT told her that they would not correct her past BPT Transcripts and that she had to correct errors during her hearing. (Letter from the BPT, Exhibit 18)

          This deliberate practice of maintaining misinformation in the transcripts and then using it in future hearings as indisputable “documented fact” is one of the things that the Board was condemned for during the Senatorial Hearings on the parole system, so they can not claim that they do not realize what they are doing or the effect that it is producing. (Exhibit 5, Ms. Atkins' Writ, Section VIII D, page 61, see also Joint Legislative Committee Hearings on Parole, Public Safety, and Proportionality, April 29, 1999, Exhibit 24, p. 47-48)

          This practice is done deliberately and knowingly, and was done so in Ms. Atkins' case in particular. This is Bad Faith.

6. The BPT Knowingly Falsely Claimed Ms. Atkins' Participation in Her Commitment Offense was Greater Than it Was.

          Perhaps the most incredible thing the BPT has ever done is that they claimed Ms. Atkins entered the home of Mr. and Mrs. LaBianca and participated in their deaths. (2000 Transcript, Exhibit 3, 105:11) The BPT Panel knew this claim was unsupported by absolutely any evidence in Ms. Atkins' file because they reviewed the file prior to the Hearing, (2000 BPT Transcript, 3:18), and they knew this claim was directly contradicted by Ms. Atkins' statements at the hearing (2000 Transcripts, 69:1-2), the Prosecuting Attorney's statements presented at the hearing (2000 Transcripts, 66:16-19), and even the testimony of the District Attorney at the Hearing (2000 Transcripts, 41:18). (fn 17)

          This falsification of Ms. Atkins' participation in her Commitment Offense was done deliberately and knowingly, which is Bad Faith.

7. The BPT Determined That Ms. Atkins Would Not Be Suitable For Parole For Four Years Because She Was Originally Given The Death Penalty - A Sentence That The BPT Admitted They Knew Was Determined By The California Supreme Court To Be Unconstitutional.

          The BPT used the fact that Ms. Atkins was originally sentenced to death as a reason to set off her next parole hearing for four years. (2000 BPT Transcript, Exhibit 3, 109:7) They then documented on the record that they knew the death penalty was determined to be unconstitutional in Ms. Atkins' case. (2000 BPT Transcript, 109:8-11) This is documentation of deliberate and knowing violation of law, which is Bad Faith.
____________________
(fn 17 - Even the BPT and the Attorney General's Office have since admitted that there was absolutely no evidence to base such an incredible claim on. See Exhibit 25, BPT Miscellaneous Decision, and State's Response to the OSC, Exhibit 6, 30:13))

8. The BPT Deliberately Demanded that Ms. Atkins Participate in Programs which They Know are Unavailable to Her.

          The BPT determined Ms. Atkins was unsuitable for parole because she had not “sufficiently participated in therapy programming” (2000 Transcript, Exhibit 3, 105:21), because she “needs more psychological treatment” (2000 Transcript, 106:21), and that it was unreasonable to expect that parole would be granted during the next four years because she needed a “longer period of treatment” (2000 Transcript, 109:11), despite the fact that the BPT knew that group therapy is no longer offered at CIW. (Exhibit 26, Documentation from Ms. Atkins' Central File concerning Group Therapy, dated 2/24/98) The BPT was aware of this because they reviewed Ms. Atkins' Central File (2000 BPT Transcript, 3:18), and this information was handed to them during the hearing (2000 BPT Transcript, 44:14).

          This was done deliberately and knowingly, which is Bad Faith.

9. The BPT Told Ms. Atkins She Didn't have to Present Evidence on Certain Issues Because They Weren't Relevant to Her Suitability, And Then Used Those Issues as Uncontroverted Evidence Against Her.

          The Board did not spend their deliberation period weighing the evidence appropriately submitted during the hearing, but searching for “evidence” to justify their pre-determined decision to deny Ms. Atkins parole. This is Bad Faith.

          In the past, the BPT has shown a practice of producing “evidence” in their decision which was never brought up or discussed during the hearing. Ms. Atkins suspected that the Board members did not spend their deliberation time weighing the evidence presented during the hearing, but digging through her Central File to find evidence to justify a pre-determined decision to find her unsuitable.

          So at Ms. Atkins' 2000 hearing she made sure that during the presentation of her record to the Board she inquired several times if there was any other information relevant to her suitability that had not been covered. (2000 Transcript, Exhibit 3, 73:3-12, 74:17-22, 77:25 - 78:1) If the BPT had been acting in Good Faith this would have afforded Ms. Atkins a chance to comment on anything that the BPT determined was relevant to her suitability that she had overlooked. This also would have prevented the Board from bringing up “evidence” to support their decision that was never brought up or discussed during the hearing.

          But it didn't.

          The BPT's determination that Ms. Atkins was unsuitable for parole because she had a “history of unstable tumultuous relationships with others, to wit her family up bringing, and the relationship she had with her mother and father,” (2000 Transcript, Exhibit 3, 104:17) was not support by a single word of discussion during the hearing. This is proof of Bad Faith.

          The BPT's determination that Ms. Atkins was unsuitable for parole because she has not sufficiently participated in “therapy programming” (2000 Transcript, Exhibit 3, 105:21) was not support by any discussion during the hearing. This is proof of Bad Faith.

          The BPT's determination that Ms. Atkins “needs additional time in order to fully understand and deal with the causation factors which led to the commitment offense. Until progress is made the prisoner continues to be unpredictable and a threat to others” (Exhibit 3, 107:3) was not support by any discussion during the hearing. What's more, as was pointed out sufficiently in her Writ (Exhibit 5, p. 82), this is exactly the type of completely unsupported “findings” that the Courts have found and condemned in Rosenkrantz (Supra at 426), Ramirez (Supra, at 571), and Dannenberg (Supra, p. 11).

          As was pointed out earlier, “Previously decided cases are surely a factor to consider in determining if the government's position is reasonable.” (Hoang Ha, Supra, 1106)(see FN 11)

          This is proof of Bad Faith

          The BPT's use of the 1996 Psychiatric Report for it's statement that “the diagnosis such as anti-social behavior and drug abuse is directly related to criminal activity” (2000 Transcript, Exhibit 3, 106:8), that Ms. Atkins had “recent disciplinary problems” and a “discharge from a psychotherapy group for failure to attend,” (106:13), that Ms. Atkins “continues to deny the seriousness of her crime, does not deal with problems directly but deflects them away during conversation” (106:18), and that Ms. Atkins has a history of poly-substance abuse (106:6), was not supported by any discussion during the Hearing.

          In each of these cases, the evidence was used against Ms. Atkins after the BPT assured her that they did not consider the information relevant to her suitability determination. That can only mean one of two things; (1) either the Board members were deliberately misleading Ms. Atkins when they indicated there was no other information relevant to her suitability that she need comment on, which would be Bad Faith, or (2) they had spent their deliberation period digging for things that would appear to justify their pre-determined decision to find her unsuitable, which would be Bad Faith. Either way, this is deliberate and knowing violation of the law, which is Bad Faith.

10. The BPT Did Not Take Into Consideration Circumstances Tending To Show Ms. Atkins' Suitability

          In a Good Faith parole Hearing the Board must take into account the circumstances tending to show suitability for parole. In Ms. Atkins' case the BPT did not mention any of the factors they are demanded to take into account by CCR Title 15. The Court in Rosenkrantz found that this constituted significant proof of lack of a legitimate hearing.

“On the other hand, the [BPT] decisions make little or no mention of any circumstances of the
offense weighing in the defendant's favor. One of the factors tending to show suitability for parole
is 'Motivation for Crime'... This factor, which is clearly supported by the evidence, was completely
ignored...” [emphasis in original] [Rosenkrantz (2000), supra, FN 13]

“As the superior court pointed out, every panel... that has heard Rosenkrantz's applications for a
determination of parole suitability has failed or refused to consider the uncontroverted fact that
Rosenkrantz committed “his crime as the result of significant stress in his life [that] ha[d] built over
a long period of time.” [Rosenkrantz (2000) Id., 426 (quoting CCR 15 §2281(d)(4))]

The First Appellate Division has held the same.

“We note, also that while the Board “commended” Ramirez for “doing very well” in custody,
its decision failed to reflect consideration of Ramirez's institutional behavior as a circumstance
tending to show his suitability for parole. This is a factor the Board is required to consider under
the regulations. ...While the Board need not recite every factor it considers in a parole hearing...
its failure to acknowledge that Ramirez's conduct in prison was a circumstance that supported
his application is yet another indication of an arbitrary and capricious determination.” [emphasis
added][Ramirez, supra, 571-572 (quoting CCR 15 §2281(d)(8))]

In Ms. Atkins' case, the Board has never once, in sixteen (16) hearings, mentioned that she has “no record of assaulting others as a juvenile” (CCR 15 § 2281(d)(1)), that she “has experienced reasonably stable relationships with others” (CCR 15 § 2281(d)(2), that she has “performed acts which tend to indicate the presence of remorse” or that she has “given indications that [she] understands the nature and magnitude of the offense” (CCR 15 § 2281(d)(3), that she “committed [her] crime as the

result of significant stress in [her] life, especially if the stress had built up over a long period of time”, (CCR 15 § 2281(d)(4), that she “lacks any significant history of violent crime,” (CCR 15 § 2281(d)(5), that her “present age reduces the probability of recidivism,” (CCR 15 § 2281(d)(6), that she has “made realistic plans for release,” (CCR 15 § 2281(d)(7), or that her “institutional activities indicate an enhanced ability to function within the law upon release,” (CCR 15 § 2281(d)(8). The Board has never, in sixteen Hearings, commended her for any of this and has never once acknowledged that these are circumstances which support her application for parole.

          The Administrative Code lists only eight circumstances tending to show suitability. Susan fits all eight. Yet the Board has failed to acknowledge them in any of her sixteen (16) hearings. This is not an accident. This is deliberate and knowing neglect or refusal to fulfill their duty, or deliberate violation of the law. It is Bad Faith.

          In addition, though the Penal Code states that the Board “shall” consider factors in mitigation (PC §3041(a)), the Board has never once, in sixteen (16) hearings mentioned any factors in mitigation of Ms. Atkins' participation in her commitment offense. A search of Ms. Atkins' Central File turned up a list of eighty-nine (89) mitigating factors present at the time of her crime, as documented by prison Psychologists, Psychiatrists and Social Workers. This list was presented to the BPT during the hearing (2000 Transcript, Exhibit 3, 50:21-27). But the BPT knows all this because they review Ms. Atkins' Central File prior to each Hearing (2000 Transcript, 3:18).

          That none of these has been mentioned in 30 years of Board hearings is incredible. This is deliberate and knowing refusal to follow the law, and refusal to fulfill their duty, which is Bad Faith.

          As the Court held in In re Sturm, one of the reasons for an administrative record is so the Court can judge what the administrative body did. (Sturm, supra, 268-69) [a statement of reasons to deny or grant parole is required to promote careful decision making, to allow inmates to make an informed application for relief and to facilitate judicial review]).
In this case the BPT transcripts prove that the Board has never honestly considered Ms. Atkins' suitability. This is proof of Bad Faith.

K.    The Inaction of the BPT Decision Review Unit After Ms. Atkins' 2000 Decision Is A Deliberate And Knowing Neglect Of Duty Or Refusal To Fulfil Their Duty, Which Is Bad Faith.

          Ms. Atkins has a due process right to a Good Faith review of the accuracy of her BPT hearing under CCR §2041 and 2042. All the evidence suggests that the BPT Decision Review Unit did nothing.

“Criteria for disapproval of a decision by the decision review unit... include clerical errors, ...
incorrect application of the law (statutes or regulations), a decision not supported by the
findings, findings not supported by the evidence on the record...

In deciding if a decision should be approved, the decision review unit shall review the
information available to the panel that made the decision and any information received as
provided in Section 2028.” [15 CCR §2042]

There were incredible errors and misapplications of law, as well as unbelievable findings not supported by the evidence at Ms. Atkins' 2000 Hearing, but the Review Unit apparently found nothing amiss. Just as damning, the Decision Review Unit did not retain any of the information available to the panel, so a real review of Ms. Atkins' hearing in compliance with §2042 was impossible.

          The BPT Review Unit ratified, condoned, and by their inactivity conspired with the BPT Panel at Ms. Atkins' Hearing in regard to deliberately falsifying Ms. Atkins' participation in her crime (entering the LaBianca's home), demanding conditions of suitability they knew were not available (group therapy), allowing evidence illegally submitted (2000 Psychiatric Evaluation), allowing evidence not available to Ms. Atkins (DA's comments taken out of past transcripts and trial records), using the unconstitutional death penalty against Ms. Atkins, and not taking into consideration circumstances tending to show suitability.

          Either the Review Unit did not even review Ms. Atkins' Hearing (a knowing and deliberate violation of law), or they condoned and let stand all these violations (a knowing and deliberate refusal to fulfill their duty). Either way this is Bad Faith.

L.    The Actions of the BPT Appeals Unit After Ms. Atkins' 2000 Decision Prove Bad Faith

          The behavior of the BPT's Appeals Unit in regards to Ms. Atkins' 15 CCR §2050 Administrative Appeal documents knowing and deliberate violations of law and deliberate refusal to fulfill duty, which is Bad Faith.

1.    The Appeals Unit Falsified Their Report; the LaBianca's Home.

          The Appeals Unit claimed that there was evidence that indicated Ms. Atkins entered the LaBianca Home. (Appeals Unit Response, Exhibit 4, p. 11) As previously discussed (Section V.,J 6 of this Writ), this is patently impossible. Even the State and the BPT themselves have admitted that this is false.

          But the Appeals Unit claimed it reviewed Ms. Atkins' appeal and her Hearing and found evidence to support this claim.
This is not only proof of Bad Faith, this is a felony under PC §134 (producing a false record in a legally authorized inquiry), as

well as PC §182 (conspiracy, since the false report was produced and signed by two Appeals Unit members).

2.    The Appeals Unit Falsified Their Report; Claiming Evidence Submitted By The District Attorney Was In Ms. Atkins' Prison Central File.

          When Ms. Atkins claimed the BPT used illegally submitted evidence not available to her as directed by law (CCR 15 §§2030(c), 2235), the BPT Appeals Unit claimed the information was all contained in Ms. Atkins' prison Central File. (Appeals Unit Response, Exhibit 4, p.5)

          The State has since confessed that this was a blatant lie and that most of the information submitted by the DA was not in Ms. Atkins' Central File, nor was it available to her. (Response to the OSC, Exhibit 6, FN 2, & FN 8)

          Once again, making claims that even the State admits are blatantly false is not only Bad Faith, it is a felony.

3.    The Appeals Unit Deliberately And Knowingly Neglected or Refused To Fulfill Their Duty; Allowing Illegally Submitted Evidence.

          Unlike the BPT Panel and the Attorney General's Office, the Appeals Unit did not deny that the 2000 Psychiatric Report was a Psychiatric Report, but it did not even respond to the issue of the admissibility deadline (this is the issue Ms. Atkins brought up in her appeal). Instead they merely reiterate that it is damaging to Ms. Atkins!

“...the most current psychiatric report is clearly relevant to the proceedings even though the
prisoner refused to be interviewed. In fact, the way the interview was refused was relevant on
the issue of suitability in and of itself.” (Appeals Unit Response, Exhibit 4, p. 4)

The deliberate and knowing neglect or refusal to fulfill duty (i.e. - to correct, or at least address, the issue of inadmissibility) is Bad Faith.

4. The Appeals Unit Deliberately And Knowingly Neglected or Refused To Fulfill Their Duty; Allowing The BPT Panel To Make Demands On Ms. Atkins That The Appeals Unit Acknowledges Were Illegal.

          The Appeals Unit admitted that, since therapy was unavailable, Ms. Atkins can not have her lack of therapy used against her (Appeals Unit Response, Exhibit 4, p.8), but they chose not to correct this or to explain why this is exactly what the BPT did at three separate places in their denial of Ms. Atkins' parole (2000 Transcripts, Exhibit 3, 105:21, 106:21, 109:11).

          The deliberate and knowing neglect or refusal to fulfill duty (i.e. - to correct violations when they are found) is Bad Faith.

5. The Appeals Unit Refused To Correct The BPT Panel's Use Of Ms. Atkins' Original Unconstitutional Death Sentence As A Reason To Additionally Punish Her.

          The Appeals Unit claimed that using Ms. Atkins' original death sentence against her was “proper,” despite the fact they know this sentence was determined to be unconstitutional by the California Supreme Court. (BPT Appeals Unit Response, Exhibit 4, p. 9)

          This ratification, condoning, and conspiracy to justify blatantly illegal behavior is Bad Faith.

6. The Appeals Unit's Refused To Correct the BPT Panel's Practice of Indicating that Ms. Atkins Didn't have to Address Certain Issues Because the BPT Didn't Believe they were Relevant to Her Suitability, and Then Using These Issues as Uncontroverted Evidence Against Her.

          The Appeals Unit determined that there was nothing wrong with the Board's practice of telling Ms. Atkins that there was nothing they considered relevant to her suitability that she hadn't discussed, and then producing these things during their decision

as evidence of her unsuitability for parole. They determined this because, “the prisoner and her counsel had a full and complete opportunity to present evidence supporting suitability and made a final statement concerning it.” (Appeals Unit Response, Exhibit 4, p. 4)

          This response is marked by its deliberate avoidance of the question - why did the Board members deliberately misinformed Ms. Atkins about subjects they considered relevant to her suitability, thereby preventing her from commenting on them? This is a deliberate and knowing neglect or refusal to fulfill their duty (i.e. - to correct, or at least address, the issue appealed), which is Bad Faith.

M.    The Attorney General's Office Has Provided Further Documentation Of The State's Bad Faith

          Because the Attorney General's Office misinterpreted Ms. Atkins' Writ as a challenge to the evidentiary sufficiency of the BPT's decision at her 2000 Hearing, they unwittingly provided further documentation to prove Ms. Atkins' claims that the State has been acting in Bad Faith. The Attorney General's Office has documented deliberate and knowing violation of the law or refusal to follow the law, and deliberate and knowing neglect of duty or refusal to follow the law.

1. The AG's Office Admits The State Believes It Is Allowed To Violate The Law In Regard To Determining Ms. Atkins' Personal Culpability.

          The Attorney General's Office, as representative of the State, claims that Ms. Atkins' legal right to have her parole suitability determined by her personal lack of dangerousness to society (PC §3041(b)), and regarding her personal actions

during her commitment offense (CCR 15 §§2236, 2281(a),(b),(c)(1),(d)-(d)(8), 2270(d)) is forfeited if she exercises her legal right to not discus her commitment offense (Return to the OSC, Exhibit 6, 14:5-13)

          They fail to show any legal argument to justify this sophistry, and perhaps Ms. Atkins should simply be grateful the BPT did not determine that she assassinated JFK - another crime which Ms. Atkins was not personally culpable for but which she failed to discuss during her Hearing.

          In addition, the AG's Office has further documented the State's entrenched belief that the clear and unambiguous directive of the Administrative Code demanding Ms. Atkins' suitability be determined in regards to her personal behavior during her commitment offense is satisfied merely by documentation of Ms. Atkins' conviction (Return to the OSC, Exhibit 6, 20:21).

          This flies in the face of the clear language of the law, and the State has provided absolutely no bases for legitimate interpretation along these lines.

CCR §2236;

“The facts of the crime shall be discussed with the prisoner to assist in determining the extent
of personal culpability.” [emphasis supplied]

CCR §2281;

“All relevant, reliable information available to the panel shall be considered in determining suitability
for parole. Such information shall include the circumstances of the prisoner's ... base and other
commitment offenses, including behavior before, during and after the crime...” [emphasis supplied]

CCR §2281(c)

“...Circumstances tending to indicate unsuitability include: (1) Commitment Offense. The prisoner
committed the offense in an especially heinous, atrocious or cruel manner...” [emphasis supplied]

CCR §2270(d)

“Multiple Year Denials. In cases in which the panel may deny a subsequent parole hearing for
more than one year, it shall utilize the criteria specified in sections 2281...”[i.e.- the prisoner's
personal behavior during the crime]

          This bold-faced assertion that the clear language of the law is not applicable to them, while providing absolutely no basis for such a claim, shows that this is a deliberate and knowing violation of law by the BPT, which is Bad Faith.

2. The AG's Office Documents That The State's Use of Evidence Not Available To Ms. Atkins Was Done In Deliberate And Knowing Violation Of The Law.

          The Attorney General's Office has provided documentation of blatant violation the law, while at the same time documenting the State's intransigence. They admit that the evidence the Board allowed the DA to present, and which the AG's Office confesses the Board used in its decision, was not legally admissible as per CCR 15 §§ 2030(c),2030(d)(2), 2235, 2247, but they insist the State could use it anyway.

          CCR 15 clearly demands that the information used at the Hearing must be part of the inmate's “central file” in §§2030(c), 2030(d)(2), and 2247. The Attorney General's Office admits that the evidence the BPT allowed the DA to submit at Ms. Atkins' Hearing was not part of her Central File, but claims that this was alright because the evidence was part of the “Administrative Record.” (See Return to the OSC, Exhibit 6, 13:22-24, FN 8, 19:1-2)

          The term “Central File” is defined by CCR 15 §2000(b)(17) as the file maintained by the inmate's institution, which the Attorney General's Office knows does not contain copies of Ms. Atkins' past transcripts. The term “Administrative Record” is not found or defined anywhere either in the Administrative codes (§2000-2359), or in the Penal Codes (§3000-3409).

          Since the AG's Office concedes that Ms. Atkins does not have access to this material, it is also a blatant violation of Jancsek, supra, 1390, as well as CCR 15 §2235, all of which demand that Ms. Atkins must be given “access to all materials considered by the Board.”

          The State is confessing they know they are violating the law while still refusing to admit they are doing anything wrong. This is Bad Faith.

3. The AG's Office Documents That The State's Use of Evidence Not Provided To Ms. Atkins Within The Prescribed Time Limits Was Done In Deliberate And Knowing Violation Of The Law.

          The Attorney General's Office has further documented the State's belief that there is nothing wrong with using evidence illegally submitted outside the administratively determined time limits (CCR §§ 2030(c), 2247, CDC Department Operating Manual (DOM) 62090.13 (Attached as Exhibit 28)).

          Like the BPT, the Attorney General's Office insists that the evidence was not a Psychiatric Report - a determination apparently based upon absolutely no premise at all except for the fact that the State keeps saying it is so. (Return to the OSC, Exhibit 6, 18:2-7) And yet the Attorney General's Office itself quotes the psychiatric conclusions of the Psychiatric Evaluation even as they insist that it is not a Psychiatric Evaluation! (Response to the OSC, Exhibit 6, 17:22-27, 22:23-25)

          As was covered sufficiently in Section V. J, 1, even if this document was not a Psychiatric Evaluation, it would still be inadmissible due to the evidentiary time limits of CCR 15 §§2030(c), and 2247.

          The State's intransigence in a position they know is legally untenable is Bad Faith.

4. The AG's Office Claims There Is Nothing Wrong With Demanding As A Condition Of Being Found Suitable For Parole That Ms. Atkins Participate In Programs Which The State Knows Are Unavailable.

          As has already been noted, the BPT is demanding Ms. Atkins get more Group Therapy, which they know is not available (covered in this Writ, Section, V(J)(8)). Incredibly, despite the fact that the BPT's Appeals Unit has already conceded that the BPT can not do this, the Attorney General's Office insists that it can (Return to the OSC, Exhibit 6, 6:1-2), and that the Board was justified in doing so! (Return to the OSC, 23:14-17)

          This constitutes a confession of knowing and deliberate behavior that even the BPT admits is illegal, which is Bad Faith.

5. The AG's Office Claims That There Is Nothing Wrong With Indicating To Ms. Atkins That She Didn't Have To Comment On Certain Issues Because The BPT Didn't Believe They Were Relevant To Her Suitability, And Then Using These Issues As Uncontroverted “Evidence” Against Her.

          The Attorney General's Office has further documented that the State finds absolutely nothing wrong with lying to an inmate  telling Ms. Atkins over and over that there was nothing relevant to her suitability that she had not commented on, and then producing withheld “evidence” after the hearing to justify their decision. (Return to the OSC, Exhibit 6, 19:19) (This was sufficiently covered in Section V, J9 of this Writ)

          The Attorney General's Office can not honestly believe there is nothing wrong with deliberately and knowingly misleading an inmate as to what issues the Board believes are relevant to suitability. (See Section V, E of this Writ)

          That the State continues to defend this practice is absolutely incredible, and it is proof of Bad Faith.

6. The AG's Office Has Further Documented That The State's Use of Evidence Against Ms. Atkins That Contradicts Her Court Transcript Was Done Knowingly and Deliberately.

          The State continues to use information against Ms. Atkins which it knows contradicts her Court Transcripts. (State Response to the OSC, Exhibit 6, 7:3-8) The State not only has the Court Transcripts, they included them in their Response to the OSC (Included as Exh. 2 in the State Response to the OSC, 7:13).

          What is even more egregious, the State includes the reference to the Court Transcript after their statement that Ms. Atkins stabbed Mr. Hinman - a claim that the State knows is not only contradicted by the Court Transcripts (Exhibit 15, page 12), it is directly contradicted by the State! (at 13:2-7)

          As was discussed above (Section V.(F)), the State can not now, after accepting the plea, change the extent of culpability they claim Ms. Atkins plead guilty to.

          The State's deliberate and knowing advancement of claims they know contradict the Plea they accepted from Ms. Atkins, and which the State itself explicitly refuted on the record is Bad Faith.

7. The AG's Office Has Documented The State's Continuing Defense Of The Behavior Of The BPT's Appeals Unit, Despite the Fact That They Provide Proof The BPT's Appeals Unit Acted Illegally.

          The Attorney General's Office has documented the State's condoning the behavior of the BPT's Appeals Unit, stating, “Contrary to [Ms.] Atkins's [sic] assertions, the Appeals Unit did conduct a thorough review of her appeal and gave adequate responses to her numerous appeal issues.” (Response to the OSC, Exhibit 6, 30:11)

          As previously covered in this Writ (Section L), the BPT Appeals Unit (1) was caught falsifying their report, claiming there was evidence showing Ms. Atkins entered the LaBiancas' home, (2) was caught falsifying their report, claiming all the comments given by the DA were contained in Ms. Atkins' Central File, (3) allowed the BPT to make demands on Ms. Atkins that it admitted were illegal, (4) deliberately neglected or refused to address or correct the BPT's violation of the evidentiary time

restraints in regard to the Psychiatric Report (5) deliberately neglected or refused to address or correct the BPT's practice of misleading Ms. Atkins about the issues the Board believed were relevant to suitability in order to prevent her from commenting on them.

Since the Attorney General's Office itself has already confessed that the Appeals Unit falsified their report in regard to the DA's comments and Ms. Atkins' participation in the LaBianca crime, their claim that the review was “thorough” and the response “adequate” is absolutely incredible. The AG's Office has actually proven the BPT Appeals Unit was acting in Bad Faith.

VI.
THE COURTS HAVE SHOWN THAT THEY ARE UNPREPARED TO DEAL WITH THE CONSTITUTIONAL “GOOD FAITH” ISSUES INVOLVED IN PAROLE HEARINGS.

          The Denial by the Superior Court and subsequent inaction by the Appellate Court simply underscores (1) the extent to which the parole system is defunct - where even egregious violations of law and Constitutional rights lack any avenue of redress - and (2) the extent to which the lower courts are completely unprepared to even recognize, let alone deal appropriately with an inmate's Constitutional right to Due Process.

A.     Holding That The Presence Of “Some Evidence” Eliminates All Of Ms. Atkins' Due Process Rights, Including Her Right To A Hearing Conducted In Good Faith Is An Error.

          The Superior Court recognized that Ms. Atkins' writ presented a claim of Bad Faith (Order re:Writ of Habeas Corpus, Exhibit 7, 1:21). But the Court then denied all Ms. Atkins' claims of blatant violations of the Penal Code, Administrative Codes,

BPT Rules and Regulations, and Constitutional Due Process rights, without a hearing based merely upon the fact that the State could provide “some evidence” that bore the indicia of reliability. (Exhibit 7, 2:6)

          This decision was an error. “Some evidence” is the standard for evidentiary challenges - it is completely irrelevant if the bases for challenging the decision isn't evidentiary sufficiency.

B.     Holding That Even Illegally Submitted Evidence Is Sufficient To Defeat All Ms. Atkins' Due Process Rights Is An Error.

          The Superior Court determined that the Psychiatric Evaluation, which indisputably was not submitted within the legal times limits of either the Administrative Codes or the Department Operating Manual, was none-the-less “some evidence” sufficient to defeat all of Ms. Atkins' claims of blatant violations of the Penal Code, Administrative Codes, BPT Rules and Regulations, and Constitutional Due Process rights, including her claim that the Psychiatric Evaluation was illegally submitted! (Exhibit 7, 3:4-5)

          This was an error.

C.     Holding That Ms. Atkins' Inability To Participate In Programs The Court Knows Are Unavailable Is Sufficient To Defeat All Ms. Atkins' Due Process Rights Is An Error.

          The Superior Court has also determined Ms. Atkins' inability to participate in programs the Court knows are unavailable, is none-the-less “some evidence” sufficient to defeat all of Ms. Atkins' claims of blatant violations of the Penal Code, Administrative Codes, BPT Rules and Regulations, and Constitutional Due Process rights, including her claim the State knows their demands are impossible to comply with! (Exhibit 7, 3:4-5)

          This was an error.

D.     Holding That The Fact That An Inmate Has No Constitutional Right To Parole Means That The Inmate Has No Right To A Hearing Conducted in Good Faith Is An Error.

          The Superior Court has also made the misguided determination that since an inmate has no Constitutional right to parole that she has no right to a hearing conducted in Good Faith, or in fact to any Due Process avenue of redress at all. This is not true. (Minnis, supra, at 649, [“Although a prisoner may not have a right to be released on parole, parole cannot be withheld unless by means consonant with due process.”] (Cf. Cafeteria Workers v. McElroy (1961) 367 U.S. 886, 894 [6 L.Ed.2d 1230, 1235, 81 S.Ct. 1743]; Sturm v. California Adult Authority (9th Cir. 1967) 395 F.2d 446, 450, Sturm, Supra, 268-269, Tucker, Supra, 179)

          The Superior Court erroneously determined that Due Process requires only that an inmate have advance written notice of her parole hearing, have an opportunity to be heard and submit materials for the Board's consideration, and have access to materials submitted to the Board by others. (Exhibit 7, 1:24 to 2:3) This is not true. (fn 18) (Petitioner can not speculate as to the intentions of the Superior Court in deliberately misquoting the Jancsek opinion so as to eliminate the demand that an inmate be given “access to all materials considered by the Board” - one of the issues central to the Writ Ms. Atkins submitted to the
____________________
(fn 18 - The Superior Court's citation to Jancsek , Supra, 1390, is edifying. The Jancsek opinion is based upon Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, which is a case concerning procedural due process in the evidentiary relm, not substantive due process. In addition, Jancsek concerned the Oregon Parole System and Greenholtz concerned the Nebraska Parole System. As has already been conceded by the State, in California inmates have a Due Process right to a Parole Hearing conducted in Good Faith. (Return to the OSC, Exhibit 6, 12:6-9))

Superior Court (Exhibit 5, Section VIII(D), p.60-64, VIII(A), p. 55-56), and a transgression conceded by the State (Return to the OSC, Exhibit 6, 13:22-24, FN 8, 19:1-2).) (fn 19)

The Court then jumps to the completely unrelated, but equally erroneous, determination that “simply stated, a decision to deny parole need only be supported by “some evidence” to satisfy the requirements of due process.” (Exhibit 7, 2:3) The Court cited In re Powell, supra for this position, but this reliance is misplaced. As the very first sentence in the Powell decision states, that case concerns an evidentiary challenge, and as such it is irrelevant to Ms. Atkins' situation. (fn 20)

As shown in section II of this Writ, the Constitutional demands of Due Process, as well as the demands of the U.S. Supreme Court, require much, much more. They demand Good Faith.
____________________
(fn 19 - The Superior Court's Order states that the California Parole System “only requires for due process consideration that the inmate have advanced, written notice of her parole hearing, have an opportunity to be heard and submit materials for the Board's consideration and have access to materials submitted to the Board by others. (Jancsek v. Oregon Board of Parole 833 F(2) 1389, 1390” (Order of the Superior Court, Exhibit 7, 1:28-22)
But Jancsek at 1390 states something different (quoting from Pedro v. Oregon Parole Board (1987), 825 F.2d 1396, 1398 (9th Cir.); ““The petitioner . . . had a hearing with written advance notice of the date and time, she had an opportunity to be heard, she was represented by a paralegal, she had access to all materials considered by the Board, and she submitted materials for the Board's consideration.”” [emphasis added]
fn 20 - As the very first sentence in Powell clearly states; “Today we are called upon to determine (1) the standard of review to be applied to a parole date rescission by the Board of Prison Terms (BPT or board) and (2) the sufficiency of the evidence in the present case when viewed in light of that standard.” [emphasis provided][In re Powell, supra, 897])

E.     The Superior Court Should Have Determined The Legal Question In Ms. Atkins' Favor, And Then Granted The Writ.

          The Superior Court issued an Order to Show Cause, signifying that Ms. Atkins had plead sufficient facts that, if true, would entitle her to relief. (People v. Duval, Supra, 474, Cal Rules of Ct 4.551(c)(1))

          By law, the State's Return to the OSC must be responsive to the allegations of the petition. People v. Duvall , id., 477, In re Conner, Supra, 711.

          The State acknowledged that Ms. Atkins had a right to a parole process conducted in Good Faith (Return to the OSC, Exhibit 6, 12:6-9), but instead of responding to Ms. Atkins' factually supported assertions of Bad Faith, the State put forth a flawed legal argument that Due Process is satisfied by the recital of “some evidence.” (Return to the OSC, Exhibit 6, 12:12-20) As was discussed above (Section II), “some evidence” is not a substitute for other requirements of Due Process, and is completely irrelevant when the basis of challenging the decision is not evidentiary sufficiency. (Hill, Supra, 453)

          The Superior Court correctly interpreted Ms. Atkins' claim as a challenge to the “Good faith actions of the entire California State parole system, from top to bottom, over the last 15 years or more, in regard to her parole eligibility.”(Order re: Writ of Habeas Corpus, Exhibit 7, 1:21)

          The Superior Court should have determined the legal argument in Ms. Atkins' favor and then, because the State chose to put forth an erroneous legal argument instead of responding to Ms. Atkins' factual assertions of Bad Faith, the Superior Court should have granted the Writ without a hearing.

"The requirement that the return allege facts responsive to the petition is critical, for the factual
allegations in the return are either admitted or disputed in the traverse and this interplay frames
the factual issues that the court must decide. Facts set forth in the return that are not disputed
in the traverse are deemed true. ([In re Lawler (1979) 23 Cal.3d 190], 194.) Conversely,
"[w]hen the return effectively acknowledges or 'admits' allegations in the petition and traverse
which, if true, justify the relief sought, such relief may be granted without a hearing on the other
factual issues joined by the pleadings." ([In re Saunders (1970) 2 Cal.3d 1033], 1048.)
(Duval, Supra, 477)

In this case, the State's Return admitted many of the claims presented in Ms. Atkins' Writ (those issues addressed in this Writ, Sections; V., D2,3, F, J2,6, L1,3), and they failed entirely to address many of the other claims presented (issues addressed in this Writ, Sections; V., E, G1,2,3,4, H1,2, I, J3,4,5,8, K, L4).

Therefore, once the elementary legal issue was determined, the factual determination as to whether the State acted in Bad Faith should have been a foregone conclusion - which may be why the State chose not to argue it.
The Superior Court should have granted Ms. Atkins' Writ.

VII.
A SHOWING OF BAD FAITH DEPRIVES THE STATE OF ANY AUTHORITY
OR RIGHT TO DETERMINE MS. ATKINS' SUITABILITY FOR PAROLE AND THE
COURT MUST SET HER FREE.

There is an enormous difference between a finding that the State has made an accidental or misguided violation of law, and a finding that the State has deliberately and knowingly acted in Bad Faith. The proper recourse for a finding that the State has made an accidental or misguided violation of law is to send the case back to the State with direction to correct the violation.

"... the appropriate judicial remedy when an agency exceeds its discretion is a remand to the
agency for further proceedings consistent with the court's opinion. See Federal Power Comm.
v. Idaho Power Co., 344 U.S. 17, 20, 73 S. Ct. 85, 87, 97 L. Ed. 15 (1952)." [Bridge v. U.S.
Parole Commission (1992), 981 F.2d 97, 105 (3rd Cir.)][emphasis added]

          But the effect of a determination that the State is acting in Bad Faith prohibits this remedy, (A) because the State has abrogated its authority in this matter by intentionally stepping outside the law, and (B) any additional hearings conducted by a State Agency already determined to be acting in Bad Faith will not satisfy the burden of providing proof that the State has mended the deficiency, and therefore provide no real remedy.

A.     By Intentionally Stepping Outside The Law, The State Has Abrogated Its Authority In The Matter Of Determining Ms. Atkins' Parole Suitability.

          The authority of the entire Parole System, both legal and moral, is based squarely upon the presumption that it is conducted in Good Faith;

"The board is a "neutral and detached" hearing body. Morrissey v. Brewer, 408 U.S. 471, 489
(1972). The parole board member has been described as an impartial professional serving
essentially "'as an arm of the sentencing judge.'" Sellars v. Procunier, 641 F.2d [1295]., at 1302,
n. 15, quoting Bricker v. Michigan Parole Board, 405 F.Supp. 1340, 1345 (ED Mich. 1975).
And in the penalty context, the parole board is constitutionally required to provide greater due
process protection than is the institution discipline committee. Wolff v. McDonnell, 418 U.S. [539],
at 561." [Cleavinger v. Saxner (1985), 474 U.S. 193, 204]

          Government officials are presumed to act in good faith. (Ward v. Rock of Racism (1989), 491 U.S. 781, 811, Hoffman v. United States, 894 F.2d 380, 385 (Fed Cir. 1990)) This presumption of good faith extends to Parole Board members. (Zannino v. Arnold (1976), 531 F.2d 687, 692 n.22 (3rd Cir.), Paine v. Baker (1979), 595 F.2d 197, 203 (4th Cir.), cert. denied, 444 U.S. 925)

          The invalidation of this presumption of Good Faith leaves the State without authority to determine Ms. Atkins' fate.

          As has been consistently held, State officials lose their immunity from civil lawsuits in cases in which their behavior intentionally moves outside the legal confines of their jobs. At the point where the official's intentional behavior is no longer confined within what they know to be legally or Constitutionally allowed, they are by definition no longer shielded from prosecution because they are by definition no longer acting as agents of the State. At the point where they are deliberately and intentionally acting illegally or unconstitutionally, they lose their State authority. (Ex parte Young (1908), 209 U.S. 123, 159-160, [When a State officer acting under color of State law "comes into conflict with the superior authority of that Constitution, ... he is in that case stripped of his official or representative character...”])

          What's more, this deliberate and knowing transgression beyond the pallor of legal or Constitutional behavior alleviates the Court from concerns about interfering with the discretion or autonomy of the Parole Board members, or about Separation of Powers.

In Ex parte Young, id., the Supreme Court stated that;

“There is no doubt that the court cannot control the exercise of the discretion of an officer.”

But the Court went on to clarify that though the discretionary duties of a State officer can not be judicially controlled,

“The general discretion... is not interfered with by an injunction which restrains the state officer
from taking any steps towards the enforcement of an unconstitutional enactment to the injury
of complainant. In such case no affirmative action of any nature is directed, and the officer is
simply prohibited from doing an act which he had no legal right to do. An injunction to prevent
him from doing that which he has no legal right to do is not an interference with the discretion
of an officer.” [Ex parte Young, id., 158-159]

          Ms. Atkins' case is the even more egregious than the case visualized in Young, because in Ms. Atkins' case the Parole System is deliberately acting in a way that their officers know is illegal and unconstitutional. In such a case the Parole System has clearly stepped outside it's legal authority, and it is no longer acting as a State agency. Preventing such a rogue body from acting illegally does not interfere with State authority - the State has abrogated that by reason of its behavior.

B.     Once The State Has Been Found To Be Acting In Bad Faith, Additional Parole Hearings Will Not Satisfy The Burden Of Showing Compliance With The Demand Of Good Faith, And Therefore Are No Remedy.

           In cases where the Parole Board commits accidental violations of the law the Court will send the issue back to the State with legal guidance and an order to correct the abuses or wrongful conduct within a fixed period of time. (Billiteri v. United States Board of Parole, (1976), 541 F.2d 938, 944 (2nd Cir.))

          The new Hearing, held without the proscribed legal or Constitutional deficiency, is the way the State satisfies the burden of proving they are complying with the law.

          But in cases involving a finding of Bad Faith, once the burden of proof shifts to the State, no subsequent Hearing will provide clear proof that the State is not continuing to act in Bad Faith, and therefore such a Hearing is meaningless and does not constitute a viable remedy.

          The Court must be able to assure that the State, already found to be acting in Bad Faith, is honoring Ms. Atkins' Constitutional rights in a “practical sense,” not merely in form. (In re Sturm, Supra, 268)

          Since 1985, the State of California has had at least twenty (20) opportunities to correct this practice and to show a commitment to following the law. (fn 21) Another Hearing, even if procedurally perfect on the surface, will not serve to assure Ms. Atkins, or the Court, that the State has changed at all.

C.    The Court Has The Authority To Set Ms. Atkins Free, And This Is The Only Viable Option.

             According to Penal Code §1487, the Court may release Ms. Atkins in any of the following cases;

2. When the imprisonment was at first lawful, yet by some act, omission, or event which
has taken place afterwards, the party has become entitled to a discharge (P.C.§1487)

____________________
(fn 21 - Since 1985 Ms. Atkins has had 6 BPT Hearings, 6 BPT Decision Review Unit reviews, 5 opportunities for Governor Review, 2 BPT Appeals Unit reviews, and one response from the Attorney General's Office.)

Due to the State's refusal to give Ms. Atkins Constitutional and legal Parole Hearings, the State has failed to satisfy the sole condition they are Legislatively authorized to use to continue to incarcerate her - a legal finding of present danger to society if released on parole. Due to this act, omission, and series of events, Ms. Atkins is being restrained illegally and unconstitutionally, and is therefore entitled to a discharge.

More to the point, P.C. §1487 gives the Court authority to release Ms. Atkins,

3. When the process is defective in some matter of substance required by law, rendering
such process void;

This is the crux of Ms. Atkins' petition. The California Parole System process has become defective in a matter of substance required by law to such an extreme extent that it has rendered itself void. Good Faith is a substantive requirement of law. It is gone, and therefore the Parole process is void.

The Court must exercise the authority given it by the Legislature and set Ms. Atkins free. Any other option will fail entirely to bring justice or to correct the behavior of a State Agency that believes it is completely above the law.

CONCLUSION

          Ms. Atkins is now over 27 years past her Minimum Eligible Parole Date.

          The behavior of the entire State system in Ms. Atkins' case has been beyond belief. If this documented (and even confessed) behavior is deemed insufficient to prove Bad Faith, then the Constitutional demand for Good Faith in the Parole process is a completely unenforceable and empty promise.

          The lack of understanding by the Court system is tragic when it comes to the point that people can not even get recognition of their fundamental Constitutional rights, let alone redress. This is lack of Due Process at its most basic level, where there is no process at all.

    Respectfully submitted

    ______________________
    JAMES W. WHITEHOUSE
    Attorney for Petitioner
    Susan Atkins

Home Introduction Restitution Project Free Outreach Bible Studies Accomplishments Support for Parole
Susan's Artwork Books Legal Issues Photographic Biography Contact Information