18-d-3 "substitute Counsel" (employee Assistant)

LibraryA Jailhouse Lawyer's Manual (2020 Edition)

18-D-3. "Substitute Counsel" (Employee Assistant)

In Baxter v. Palmigiano, the Supreme Court held that prisoners do not have a right to counsel at disciplinary proceedings. 138 The Wolff Court did, however, recognize two circumstances in which you are entitled to a "counsel-substitute."Your "counsel-substitute" can either be a prison employee ("employee assistant") or a fellow prisoner who assists you in the preparation of your case). First, you are entitled to a counsel-substitute if you are illiterate.139 Second, if your case is really complicated, although the Court did not define what "complicated" means. 140 Therefore, it is unclear how complex the facts involved must be before you can demand help from an employee assistant. If you face some clear personal barrier to preparing your defense (for example: illiteracy, language, mental illness, or restrictive confinement), you should tell prison officials about it. These barriers will make your claim for assistance stronger.

The New York law is broader than the Wolff standard. New York regulations specifically guarantee an employee assistant for certain prisoners, including:

(1) Non-English speaking prisoners,

(2) Illiterate prisoners,

(3) Prisoners who are deaf or hard-of-hearing (who may be provided with sign language interpreters),

(4) Prisoners who are charged with drug use as a result of urinalysis tests, and

(5) Prisoners confined to a special housing unit (SHU) while waiting for a superintendent's hearing. 141

In the case of non-English speaking prisoners, a court held that a prisoner who spoke only Spanish had the right to meet with a Spanish-speaking assistant at least twenty-four hours before his disciplinary hearing.142 In the case of segregated prisoners, a court ruled that a prisoner who cannot adequately prepare his defense because of his segregation or transfer has a due process right to assistance. 143 In these situations, correction officers must perform the investigatory tasks that the prisoner would perform if he was able to do it himself.144 However, note that assistants are only required to answer questions you specifically ask, and to perform tasks you specifically request.145 Finally, if you are entitled to an assistant, New York law requires your hearing take place no sooner than twenty-four hours after your initial meeting with that assistant. 146

When you receive notice of the charges against you, you will be...

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