Absence of evidence douses tobacco charge

February 20, 2015

An Indiana inmate’s punishment for allegedly trafficking in tobacco was snuffed out when the 7th Circuit Court of Appeals found he was convicted without evidence of guilt.

Timothy Austin was docked good-time credit and assigned extra work after correctional officers accused him of putting cigarette papers and a plastic bag of loose tobacco in a crawl space. Austin petitioned for federal habeas corpus on the ground that the disciplinary proceeding denied him due process of law by convicting him without sufficient evidence.

The 7th Circuit agreed in Timothy W. Austin v. Andrew Pazera, 14-2574, reversing the judgment by the U.S. District Court for the Northern District of Indiana and remanding with instructions to order the relief sought by Austin.
“For when the imposition of prison discipline is not supported by even ‘some evidence,’ which we think the proper characterization of the scanty record in this case, the prisoner is entitled to a write of habeas corpus commanding that the discipline be rescinded,” Judge Richard Posner wrote.

At the disciplinary hearing, Austin claimed that on the only day he had worked in the crawl space, four other inmates also worked there, cutting and removing pipes. The 7th Circuit noted Austin’s testimony was never contradicted by the prison.

“If it’s assumed that any of the five could have placed the tobacco in the crawl space, then, as we know nothing about the other four, we could conclude only that Austin had a 20 percent probability of being the culprit,” Posner wrote. “The district court deemed this sufficient evidence of his guilt to place the disciplinary sanctions imposed on him beyond judicial authority to reserve. Yet it seems odd, to say the least, that someone should be punished when there is an 80 percent probability that he is innocent.”


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