* District Judge of the Southern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 98-50180

_______________________

ROBERT THOMAS BARNES,

Petitioner-Appellee,

v.

GARY L. JOHNSON, Director, Texas Department of

Criminal Justice, Institutional Division,

Respondent-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

August 6, 1999

Before WIENER and PARKE R, Circuit Judges, and LAKE, District

Judge. *

LAKE, District Judge:

The Director of the Texas Department of Criminal Justice

appeals from the Final Judgment of the district court conditionally

granting a writ of habeas corpus to a state prisoner whom the court

concluded had been denied the right of confrontation at a parole

revocation hearing. For the reasons explained below we R EVERSE the

judgment of the district court and VACATE the writ.

I. Facts and Procedural History-2-

In 1984 Robert Thomas Barnes pled guilty to one count of

aggravated sexual assault of a child and was sentenced to twentyfive years in prison. Barnes was released from prison on mandatory

supervi sion in November of 1993. In August of 1995 the State of

Texas moved to revoke Barnes’s parole after Debra Odom accused

Barnes of sexua lly assaulting her. Barnes denied the allegation

and counsel was appointed to represent him. A hearing officer of

the Texas Board of Pardons and Paroles conducted a preliminary

hearing on September 22, 1995, and a revocation hearing on

November 9, 1995.

Odom suffers from Downs Syndrome. Although at the time of the

revocation hearing Odom was 34 years old, the hearing officer found

that she had the mental age of a six- or seven-year-old child. The

hearing officer found that Odom was a fearful witness and that good

cause thus existed to remove Barnes from the room during Odom’s

testimony. The hearing officer allowed Barnes’s counsel to crossexamine Odom, to ask for continuances to speak with Barnes outside

of the hearing room, and to replay Odom’s tape-recorded testimony

for Barnes. At the conclusion of the hearing the hearing officer

found that Barnes had sexually assaulted Odom in February of 1995

and recommended that his parole be revoked. On December 1, 1995,

the State revoked Barnes’s parole release.1 On June 24, 1996, Barnes filed an app lication for writ of

habeas corpus in the state courts alleging inter alia a violation

of the Sixth Amendment’s Confrontation Clause. Finding that Barnes

had filed previous applications for habeas corpus challenging his

conviction, which h ad been denied, the state trial court

recommended that Barnes’s application be denied and that the Texas

Court of Criminal Appeals cite Barnes for abuse of the writ. Order

at 1-2, Ex Parte Barnes

, No. 11,657-07, 66-67 (Tex. Crim. App.

Aug. 28, 1996). On August 28, 1996, the Texas Court of Criminal

Appeals denied Barnes’s application “without written order.” Id.

at cover. The district court concluded that no deference to the

state court findings or conclusions was required because there were no findings or conclusions to defer to.

-3- After the state courts denied Barnes’s application for writ of

habeas corpus, 1 Barnes sought habeas relief in federal district

court raising seven grounds for relief:

(1) violation of the Sixth Amendment’s Confrontation

Clause,

(2) ineffective assistance of counsel,

(3) denial of his right to present medical records,

(4) denial of the opportunity to present witnesses,

(5) den ial of his right to a neutral and detached

hearing body,

(6) denial of equal protection of the laws in pursuing

the parole violation against him, and

(7) denial of due process at the revocation hearing.

The State moved for summary judgment. The magistrate judge

recommended that the distr ict court deny the State’s motion for

summary judgment and grant Barnes a writ of habeas corpus on the

Confrontation Clause claim. The district court independently

reviewed the record and also considered audio tapes of the parole

revocation hearing that had not been filed when the magistrate

judge made his recommendation. The district court accepted the2 The district court did not consid er Barnes’s other grounds

for relief. Because Barnes would only be entitled to a new

revocation hear ing were he successful on those grounds, the

district court concluded they were moot since the court had already

ordered the state to provide Barnes a new hearing.

-4- magistrate judge’s recommendation and granted a conditional writ of

habeas corpus, ordering the State either to release Barnes or to

provide him with a new revo cation hearing within thirty days. 2

This court granted the State’s motion for a stay pending appeal.

II. Analysis

This court reviews de novo constitutional challenges

concerning the right to confront adverse witnesses. U nited States

v. Grandlund , 71 F.3d 507, 509 (5th Cir. 1995).

In Morrissey v. Brewer

, 92 S. Ct. 2593 (1972), the Court

r ecognized that a parole revocation hearing is not a crimi nal

prosecution and thus “the full panoply of rights due a defendant in

such a proceeding does not apply. . . .” Id. at 2600. The Court

held that the Due Proce ss Clause nevertheless requires certain

minimal safeguards to protect the limited liberty interest at stake

in a parole revocation hearing. The Court stated that a parolee is

entitled to

(1) written notice of the alleged parole violations,

(2) disclosure of the evidence against him,

(3) an opportunity to b e heard personally and to

present evidence,

(4) “ the right to confront and cross-examine adverse

witnesses (unless the hearing officer specifically

finds good cause for not allowing confrontation) ,”

(5) a hearing before a neutral and detached body, and3 The Court stated that the parole revocation process “should

be flexible enough to consider evidence including letters,

affidavits, and other material that would not be admissible in an

adversary criminal trial.” Id

.

-5- (6) a written statement by the fact finders describing

the evidence reviewed and the reasons for revoking

parole.

Id. at 2604 (emphasis added). After listing these requirements the

Court “emphasize[d ] [that] there is no thought to equate this

second stage of parole revocation to a criminal prosecution in any

sense” and that the Court had “no thought to create an inflexible

structure for parole revocation procedures.” Id

. 3

This court has held that to fall within the good-cause

exception to the right of confrontation at a parole revocation

hearing the hearing officer must make an explicit, specific finding

of good c a use and state the reasons for that finding. S ee

Grandlund , 71 F.3d at 510 n.6; Baker v. Wainwright , 527 F.2d 372,

378 (5th Cir. 1976). The hearing officer must weigh the parolee’s

interest in confronting the witness with the government’s interest

in denying the parolee that right. Williams v. Johnson , 171 F.3d

300, 304 n.4 (5th Cir. 1999), pet. for cert. filed

, No . 99-5046

(U.S. June 28, 1999); United States v. McCormick

, 54 F.3d 214, 221

(5th Cir. 1995). An important consideration in this balancing is

the reliability of the challenged testi mony. S ee Grandlund

, 71

F.3d at 510; McCormick , 54 F.3d at 223.

At Barnes’s revocation hearing his pa role officer asked the

hearing officer to exclude Barnes from the hearing room while Odom

testified because Odom was a fearful witness. When Barnes objected4 Transcript of November 9, 1995, revocation hearing at

page 23.

5 November 15, 1995, Revocation Hearing Report at page 3-A.

-6- the hearing officer sent Barnes out of the room and questioned Odom

and her grandmother, with whom Odom lived, to determine if Odom was

a fraid to testify in Barnes’s presence. After considering their

testimony the hearing officer found that Odom was a fearful witness

and ord ered that Barnes remain outside the room while she

testified. The transcript of the hearing contains the following

finding by the hearing officer:

Okay, counselor, I am prepared to declare Ms. Odom a

fearful witness in this matter. I do not feel she is

mentally capable to testify in the capacity with

Mr. Barnes present. I think she is suffering from the

Down[s] Syndrome. Several factors involved [sic], . . .,

I do believe she falls within the classification of the

fearful witness and will make such a finding. I noted

your objection to Mr. Barnes’s right to cross examination

and confront. I am going to overrule the objection and

I will make a good cause finding for the declaration of

fearful witness. 4

In the formal report of the hearing the hearing officer made the

following finding:

GOOD CAUSE DETERMINATION : Good Cause was found to GRANT

the Fearful Witness status to the Complainant who is

suffering from down syndrome [sic], has a mental age of

app roximately a 6 to 7 year old as testified to by her

grandmother who is the legal guardian. The Complainant

ind icated that she was scared of the RELEASEE.

Complainant’s grandmother [sic] that her granddaughter

was afraid of the RELEASEE. 5

In evaluating Barnes’s Confrontation Clause claim the district

court concluded that it was appropriate to rely by analogy on cases

applying the Confrontation Clau se to criminal trials. The court

applied the standards announced in Maryland v. Craig

, 110 S. Ct.6 Order Accepting Recommendation of Magistrate Judge at page 7.

-7- 3157 (1990). In Craig the Court held that testimony by an abused

child over a one-way, closed-circuit television did not violate the

right of a defendant in a criminal trial to confront adverse

witnesses. Recognizing that the state’s interest in protecting

child abuse v ictims from further embarrassment and trauma is

compelling, the Supreme Court concluded that the interest in a

child’s emotional well-being “may be sufficiently impor tant to

outweigh, at least in some cases, a defendant’s right to face his

or her accusers in court.” I d. at 3167. The Court held that a

trial court may employ an alternative to face-to-face confrontation

when ”necessary to protect a child witness from trauma that would

be caused by testifying in the physical presence of the defendant,

at least where such trauma would impair the child’s ability to

communicate. . . .” Id. at 3170.

Applying the Maryland v. Craig standard for criminal trials as

the standard for good cause, the district court concluded that the

State had not shown good cause for excluding Barnes from the

hearing room while Odom testified because the hearing officer had

not specifically found that Odom “feared Petitioner to the extent

that she would be unable to test ify or that such trauma would

impair her testimony.” 6 Although the hearing officer had found

that Odom was afraid of Barnes, the district court concluded that

this generalized fear was not sufficient under Maryland v. Craig to

constitute good cause.7 In United States v. McCormick

, 54 F.3d at 221, we explained

that the Morrissey v. Brewer good cause analysis also applies to

federal supervised release revocation proceedings.

-8- We conclude that the district court erred in requiring the

State to satisfy the Maryland v. Craig standard in a parole

revocation hearing and in failing to balance the interests of the

State and Barnes.

The district court’s adherence to Maryland v. Craig went

beyond the requirements of Morrissey v. Brewer

. M aryland v. Craig

sets a higher standard for criminal trials than does Morrissey v.

Brewer for revocation hearings. In several decisions we have

applied the Morrissey v. Brewer test to determine whether good

cause existed to revoke state parole or federal supervised release

when the defendant did not have the opportunity to confront

witnesses against him. 7 In U nited States v. McCormick

, 54 F.3d at

226, w e affirmed a revocation of supervised release even though

McCormick was not allowed to cross-examine laboratory technicians

or the laboratory’s director of toxicology whose urinalysis reports

and affidavit were relied upon by the district court in finding

that McCormick possessed a controlled substance. We concluded that

given the reliability of the reports, as explained in the

director’s aff idavit, and the indicia of reliability of the

affidavit itself, the record supported the district court’s

implicit finding that the difficulty and expense o f calling the

laboratory technicians and the expense to the government and the

disruption to the laboratory in calling the director were good

cause for denying McCormick’s right to confront and cross-examine-9-

the technicians and director. I d. at 221-226. In U nited States v.

Grandlund

, 71 F.3d at 511, we reached a similar result, holding

that “[a]voiding the delay, difficulty, and expense of securing the

appearance of distant witnesses” was sufficient good cause to deny

the defendant at a supervised release revocation hearing the right

to confront and cross-examine la boratory personnel who prepared

reports of analyses of defendant’s urine samples, given the indicia

of reliability of the many reports.

On the other hand, in Williams v. Johnson

, 171 F.3d at 306, we

held that the state’s policy of not requiring parole officers to

travel outside their districts to attend parole revocation hearings

was not sufficient good cause to deny a parolee the right to crossexamine the officer, absent some assessment of the strength of the

parolee’s competing need to cross-examine the parole officer, and

we have held that the mere fact that the complaining witness to a

sexual assault charge was out of state at the time of a revocation

hearing was not good cause for excusing her from attending a

revocation hearing and allowing oth er witnesses to give hearsay

renditions of her testimony. M cBride v. Johnson

, 118 F.3d 432,

438-439 (5th Cir. 1997).

Our purpose in citing these decisions is not to attempt to

catalogue the universe of reasons that may or may not constitute

good cause for dispensing with the right of confrontation at a

parole revocation hearing. Our case law makes clear that this is

a flexible requirement, depending in part on the importance of the

testimony and the parolee’s need to confront the witness. In

Bar nes’s case, however, the district court, by applying the more-10-

rigorous requirements of Maryland v. Craig , failed to apply the

proper standard for determining whether the hearing officer’s

finding that Odom was a fearful witness satisfied the more relaxed

good cause requirement of Morrissey v. Brewer

.

Good cause in the context of a parole revocation hearing is

determined by balancing the inte rests of the government and the

parole e. S ee Williams

, 171 F.3d at 304 n.4, 306; McCormick

, 54

F.3d at 221; Baker

, 527 F.2d at 377. Certainly, in a case like

this, where Barnes’s revocation was based primarily on the disputed

testimony of Odom, Barnes had a significant interest in confronting

her. At the revocation hearing the hearing officer balanced that

interest against the State’s interest and concluded that the fear

of a mentally retarded complainant of testifying in the presence of

the man who allegedly assaulted her outweighed Barnes’s interest in

being present in the hearing room given the procedures the hearing

officer implemented to a ssure an effective cross-examination of

Odom by Barnes’s attorney. The district court, by not also

consideri ng and balancing those competing interests, failed to

follow the requirements of Morrisse y v. Brewer and our decisions

applying it.

We REVERSE the Judgment of the district court, VACATE the Writ

of Habeas Corpus, and REMAND the case to the district cou rt for

further proceedings consistent with this Opinion.