by Matt Clarke

On September 1, 2015, a California court of appeal vacated the decision of the Board of Parole Hearings to deny parole to a prisoner who had been convicted of first-degree murder and sentenced to life in prison because the decision was impermissibly based upon the prisoner’s claim of innocence.

Fred Swanigan was convicted of fatally shooting a man during an argument over money the man owed him for damaging his car. The conviction was based upon the imperfect eyewitness testimony of three witnesses--two children and an adult. A jury sentenced him to life in prison for the 1980 murder. He consistently denied committing the crime and had an alibi witness.

Swanigan’s first parole hearing was in 1996. He denied committing the crime, and the board denied parole. That was the pattern for 18 years. Then, in 2009, without admitting guilt, Swanigan “accepted responsibility” for the murder. Not satisfied, the board denied parole.

In a 2012 hearing, the “Board told Swanigan at least 10 times that his denial of parole centered on the denial of the life crime.” In a 2014 hearing, Swanigan briefly admitted the offense, but immediately recanted when his lawyer told him to tell the truth. Parole was denied for failure to admit the crime and lying to the board when he confessed.

Swanigan filed a petition for a writ of habeas corpus in Los Angeles County Superior Court, challenging the 2014 parole denial as unsupported by “some evidence” of future dangerousness. The court denied the petition.

Swanigan filed an original petition for a writ of habeas corpus in the court of appeals. The court appointed attorney Rich Pfeiffer to represent him. It then issued a decision agreeing with Swanigan.

“Swanigan is 55 years old. He lacks any juvenile record and had no violent history or criminal convictions as an adult except the commitment offense. He has no history of drug or alcohol abuse and has never belonged to a gang. He has maintained an exemplary disciplinary record in prison for nearly two decades. His psychological evaluation by the Board’s psychologist disclosed no mental health issues and a “low” risk profile. Swanigan has parole plans that satisfied the board and has taken numerous self-help and vocational training programs and received laudatory “chronos,” representing positive evaluations from prison authorities.” The board even lamented its decision to deny parole given his outstanding record.

The board is allowed to consider a prisoner’s lack of insight into the commitment offense. “Pursuant to Penal Code section 5510, subdivision (b), however, the Board ‘shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed.” Essentially, the board was violating section 5510 by using Swanigan’s proclamation of innocence to say he lacked insight into the crime he said he did not commit.

The court also noted that Swanigan’s protestations of innocence were not as implausible as the board and prosecutor claimed. His conviction was based upon eyewitness identification of a man who disguised his face long after the offense occurred and there were irregularities in how the police handled the photo lineup. Neither the gun nor clothing used in the murder were found in Swanigan’s domicile and he had a plausible alibi from his girlfriend.

None of the evidence in the record proved Swanigan was a continuing threat to public safety. Because the record contained not even a “modicum” of suitable evidence to support denial of parole, the court vacated the board’s decision to deny parole and ordered it to conduct a new hearing consistent with the opinion. See: In re Swanigan, 240 Cal. App. 4th 1 (Cal. App. 2d Dist. 2015).

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