Parkinson

MEMORANDUM *

Parkinson appeals the district court’s revocation of his supervised release for submitting an invalid urine sample incident to his drug rehabilitation program.

At the revocation hearing, the government called Parkinson’s probation officer, Amy Young, to testify that Parkinson’s urine sample was flushed (diluted with water). One piece of objective evidence that the government used to prove that the sample was flushed was the specific gravity measurement taken at the time Parkinson submitted his sample. However, Probation Officer Richard Coleton, not Young, witnessed and tested Parkinson’s urine sample. Coleton reported the results of the test to Young. The government sought to have Young recount Coleton’s statements on the stand and Parkinson made a hearsay objection. The district court allowed Young’s testimony over Parkinson’s objection. Coleton was not called as a witness.

In addition to recounting Coleton’s statements, Young also testified that she had spoken with Parkinson about the urinalysis prior to the day of testing. According to her testimony, in that conversation, Young told Parkinson that if he drank a lot of water prior to the test it could result in a…

dissenting.

I respectfully dissent. Parkinson’s due process rights were violated and the error was far from harmless.

The majority recites the law that governs the right to confrontation in revocation hearings, analyzing it as a due process violation, not a violation of the Sixth Amendment right to confrontation. United States v. Hall, 419 F.3d 980, 985 (9th Cir.2005). It acknowledges that the court must apply the balancing test set out in Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972), to determine whether there has been a due process violation in the admission of hearsay evidence at a revocation hearing. It does not deny that Morrissey requires the court to weigh the releasee’s “right to confrontation against the Government’s good cause for denying it.” United States v. Martin, 984 F.2d 308, 310 (9th Cir.1993). So far so good.

It is at this point that the majority’s analysis goes awry. The majority’s first mistake is to find Parkinson’s interest in confrontation, one side of the Morrissey balancing test, to be “weak.” When evaluating a releasee’s right to confrontation, among the factors the court should consider are “the importance of the evidence…