Opinion
DOCKET NO. A—3575—10T3
09-29-2014
SUNDIATA ACOLI, f/k/a CLARK EDWARD SQUIRE, Petitioner—Appellant, v. NEW JERSEY STATE PAROLE BOARD, Respondent—Respondent.
Bruce I. Afran argued the cause for appellant. Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Hayden, and Rothstadt. On appeal from the New Jersey State Parole Board. Bruce I. Afran argued the cause for appellant. Christopher C. Josephson, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Josephson, on the brief). PER CURIAM
Petitioner Sundiata Acoli, formerly known as Clark Edward Squire, appeals from the 2011 parole denial by respondent New Jersey State Parole Board (the Board). In 1974, a jury convicted Acoli of the 1973 murder of State Trooper Werner Foerster and the atrocious assault on State Trooper James Harper. The Board previously denied parole for Acoli in 1993 and 2004.
Acoli was born in 1937, and he was seventy-four years old at the time of the 2011 parole denial.
Acoli argues that, in determining he was substantially likely to commit another crime and in denying parole based on that determination, the Board improperly emphasized certain factors and ignored or devalued many others. We conclude from our thorough scrutiny of the record that it cannot support the Board's stated reasons for denial of parole, namely that if released Acoli would be likely to commit another crime. Accordingly, we reverse and remand to the Board with directions.
We discern the following facts from the record. Acoli's current incarceration is for the horrific events of May 2, 1973. At approximately 12:45 a.m., Harper pulled over a vehicle operated by Acoli on the New Jersey Turnpike because of a broken taillight. James Costen and Joanne Chesimard were Acoli's passengers. Acoli got out of the car and produced a New York driver's license and a Vermont vehicle registration.
When Foerster arrived as backup, Harper went to the driver's side of the vehicle to question the other two occupants while Foerster patted down Acoli, who was standing outside the passenger side. Foerster discovered an automatic pistol and clip of ammunition on Acoli's person, and immediately informed Harper, who ordered the passengers to put their hands on their laps. Chesimard pulled out a gun and shot Harper in the shoulder as he attempted to withdraw from the vehicle. A gun battle between Chesimard, Costen, and Harper ensued. Harper wounded both Chesimard and Costen before he retreated to the nearby police barracks to obtain assistance.
Meanwhile, on the other side of the vehicle, Acoli began a physical struggle with Foerster. According to ballistic evidence, Foerster was shot once with Acoli's weapon, then shot with his own service revolver twice more in the head, killing him. Acoli then assisted Chesimard and Costen into his vehicle and fled but pulled over to the side of the highway a few miles away.
The transcripts of the trial were not part of the record. During the parole hearing, one member noted that ballistics evidence at the trial showed that Acoli's gun was only fired once and Foerster's twice; all bullets were recovered from the trooper's body. Other evidence in the record indicates that Foerster may have been shot a fourth time, but it is unclear from whose gun. Acoli consistently claimed that he was temporarily unconscious or "blacked out" when Foerster was shot, having been grazed on his head by a bullet shot by Harper. He had no sign of such an injury when arrested.
Shortly thereafter, the police apprehended Chesimard, who had entered the woods next to the Turnpike, and discovered Costen close by, dead as a result of his gunshot wounds. Near Costen's body, police located Foerster's gun with Acoli's blood on it. Acoli was apprehended the next day.
Acoli was swiftly indicted for two counts of murder (first and second counts), atrocious assault and battery (third count), assault and battery (fourth count), assault with an offensive weapon (fifth count), assault with intent to kill (sixth count), illegal possession of a weapon (seventh count), and armed robbery (eighth count). In 1974, after fifty-one days of trial, a jury found Acoli guilty on all counts except the second count, which involved the murder of Costen. The trial judge sentenced Acoli to life imprisonment on count one, ten to twelve years on count six, two to three years on count seven, and twelve to fifteen years on count eight. All counts were run consecutively and the remaining counts were merged. The resulting aggregated sentence totaled life plus twenty-four to thirty years.
Acoli's adjustment to incarceration started out rocky and he accumulated several infractions. In 1979, he was transferred to the federal prison system. He was captured trying to escape from federal prison, and, in 1982, he began serving a five-year concurrent federal prison term for the escape attempt. He is currently in a federal correction facility in Otisville, New York. Acoli accumulated a total of twenty-seven disciplinary citations prior to 1997. He has remained incident free since 1996, and, according to his institutional progress report from the federal bureau of prisons, "[h]e has displayed a positive rapport with both staff and inmates."
The record indicates that he accumulated twenty-two by 1979, then was infraction free for fifteen years. Between 1994 and 1996, he accumulated five minor infractions.
Acoli completed at least 100 different programs for self-improvement as well as vocational training since his incarceration, including on such topics as computer, health, art, history, fitness, typing, real estate, education, and industrial safety and health. In addition, he participated in numerous programs designed to alter an inmate's perspective and modify his behavior, including "Breaking the Cycle of Unproductiveness," "Doing Time with the Right Mind," "Commitment to Change," "Criminal Thinking," and "Life Strategies." He also took a course called "Voices of Experience" to become an inmate peer to assist new inmates with institutional and social coping skills. While at the Allenwood federal correctional facility from 1994 to 2008, he was a prisoner representative for the Allenwood Social Resource Organization, which established programs and activities for the inmate population, and, due to his positive institutional record, he became a member of the Honors Unit program.
Additionally, at Acoli's request, in July 2008 he began meeting twice a month with the psychology services staff to develop coping skills, self-help skills, and other skills relevant to community transition. The staff reported that Acoli was "well developed in these areas and ha[d] demonstrated adequate coping skills, an organized approach to completing goals and ability to establish positive interaction with others." The staff also reported that they "expect[ed] [Acoli] to be able to transition to the community if paroled" and pointed out that "the older an offender is, the less likely they are to re-offend."
As an adult, Acoli had three prior criminal convictions. In 1965, he was convicted in New York of disorderly conduct for possession of marijuana and received a thirty-day suspended sentence. In 1966, he was charged with weapon possession and possession of marijuana, which were downgraded to misdemeanors, resulting in a sentence of probation. In 1969, he was convicted of a violation of probation, but the court continued the probation. In addition, in May 1973, Acoli had an assault charge in the Bronx, which was never adjudicated, and also had a robbery charge in Alabama from January 1973 with a detainer lodged in New Jersey.
On January 22, 2010, Lois D. Goorwitz, Ph.D., a licensed psychologist, conducted a pre-parole mental health evaluation of Acoli for the Board. She noted that he spoke at a slow rate of speech "which appear[ed] age related." The doctor found Acoli "to be very cooperative, self[-]reflective, thoughtful, and non[-]defensive in his responses to the questions posed to him." She opined that Acoli "appeared to be answering honestly," and that he "expressed regret and remorse about his involvement in the death of the state trooper." The doctor reported that Acoli believed he changed over the years due to his age, participation in counseling, and also because the political climate had evolved such that violence was no longer necessary to effect change. Acoli also stated to the doctor that he had no interest in being part of the Black Panthers, Black Liberation Army (BLA), or any derivative group. Acoli further expressed regret about missing out on raising his daughters and not being a "real father" to them.
After fully reviewing the case, we have concluded that there is no current reason for this report to remain confidential for purposes of discussion in this opinion. N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 541 n. 1 (App. Div.) (citing Thompson v. N.J. State Parole Bd., 210 N.J. Super. 107, 116-127 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988). However, the confidential appendix which contains the actual report, as well as other documents, shall remain sealed.
Concerning Acoli's program involvement, the doctor detailed Acoli's extensive participation in numerous programs. She also reported that, at the conclusion of the evaluation, a prison staff member escorting her out "made a point of saying that he [taught] the computer class and that [Acoli] attend[ed] the class 'regularly without fail and on time' and '[was] an excellent student.'" The doctor found Acoli's parole plan to be feasible, although in need of continued investigation.
As to Acoli's psychological health, Dr. Goorwitz concluded there were "NO psychological contraindications to granting parole." Acoli's score on the Level of Service Inventory -Revised (LSI-R) test was a nineteen, indicating a "MODERATE RISK for recidivism with a 28% chance of re-arrest and a 17.1% chance of reconviction within two years of release." The doctor's prognosis for reoffending was "a Low to Moderate Risk for future violence." The doctor detailed Acoli's strengths as "[a]bove average adjustment to incarceration since 1996, High School and college graduate, [a]bove average job skills and work history, [g]ood family support in the community, [e]xpressed family values, [and] [e]xpressed motivation to make changes in lifestyle and behavior."
The doctor reached this conclusion although she noted it was "of some concern that [Acoli] was not able to unequivocally identify who was responsible for killing the trooper." The doctor detailed Acoli's weaknesses as "[his] [c]riminal history include[d] significant violence, [r]emote history [of] escape attempts and multiple disciplinary charges, [h]istory of minimizing responsibility for crimes, [and] [a]nti-social traits by remote history."
The doctor stated that her "overall impression of [Acoli] was favorable[.]" However, she described an incident that she found "suggestive" of "poor judgment." Specifically, on the morning of Acoli's scheduled assessment he called the doctor's office directly. The prison staff had inadvertently provided Acoli with the doctor's contact information, which was not ordinarily given to inmates. When questioned about the call, Acoli stated he contacted the doctor merely to find out the exact time of her evaluation so he would be properly dressed to receive visitors. The doctor opined that Acoli, who had been incarcerated for a long time and already had two parole hearings, "should have known that it would be inappropriate to call [her] directly but rather should have asked that a prison official do that for him." The doctor believed that Acoli's call "suggest[ed] that there are situations in which [Acoli] may exhibit impulsivity and questionable judgment." The doctor further observed that when Acoli wished to relay additional information to her after the evaluation, he learned from the incident and used the appropriate channels to convey the information.
Dr. Goorwitz concluded that "it [was] time to seriously consider [Acoli] for parole." She opined that
[m]aturity through aging and years of mental health treatment appear[ed] to have resulted in significant self[—]growth, the ability to take responsibility for his crimes, and significantly changed views on politics and the use of violence. However to be on the safe side, should [Acoli] be approved for parole [she] would recommend a halfway back program first and a high level of supervision at least for the first year to be more certain that [Acoli was] as changed and reformed as he appear[ed] to be.
Acoli's release plan included residing with his daughter and obtaining employment with his family's business performing computer work. Acoli also noted that he could pursue computer contract work from outside companies and obtain Social Security benefits as means of support.
On March 4, 2010, Acoli had a parole hearing before a two—member panel. During the hearing, Acoli acknowledged that in the late 1960s through the early 1970s he was active in the Black Panther Party and its offshoot, the BLA. In particular, he was the finance officer for the Harlem Black Panther Party and did organizing and recruiting for the BLA. Prior to his involvement in these groups, Acoli obtained a college degree in math and held several jobs in the computer field.
The circuit court in Spain v. Rushen described the Black Panther Party "as a revolutionary group founded in 1966 in Oakland, California that reached its peak by the early 1970s. The group adopted a platform calling for, among other things, the arming of all blacks, the release of all blacks from prison, and the trial of blacks by all-black juries." 883 F.2d 712, 713 n.1 (9th Cir. 1989) (internal citations omitted).
The Board reviewed several printouts from a website related to the campaign to "free Acoli." A number of the undated texts were purportedly written by Acoli and included statements that he was a "political prisoner" and that there was a continued need for societal transformation and revolution to change the "racist, capitalist system" and bring about "true liberation" of all oppressed people. Acoli acknowledged that he knew about the website but did not operate or control it.
The panel denied him parole at the end of the hearing and referred his case to a three-member panel for the establishment of a future eligibility term (FET) in excess of the administrative guidelines. The two-member panel, in its written denial, noted Acoli's behavioral and institutional program participation or attempted participation as a mitigating factor. As reasons for its denial, the panel listed Acoli's criminal record, the nature of his record becoming increasingly more serious, his incarceration on a multi-crime conviction, his prior probation failing to deter future criminal behavior, his insufficient problem resolution, and his risk assessment.
In particular, the panel noted that Acoli denied his crime and minimized his conduct. The panel stated that Acoli's "ans[wers] to questions were not credible and his versions of events were not consistent with the facts. His answers were indirect and measured responses. He [was] still in denial of the execution-style killing of a [New Jersey] State Trooper." The panel noted that it was "difficult to understand if his thinking ha[d] transformed from violent to nonviolent thinking," but recent events demonstrated "impulsive and questionable judgment."
Acoli appealed the decision. He also submitted a letter of mitigation again expressing his remorse for the death of Foerster, detailing his positive incarceration record and program participation, describing his support system, noting his advanced age, stating that further incarceration could only serve a punitive purpose, explaining why he contacted Dr. Goorwitz, and clarifying certain answers given in his hearing.
Apparently Acoli had stated his remorse at the other two parole hearings. He also petitioned for parole this time by submitting a written request, which stated, among other things, "I take full responsibility for the crimes for which [I am] presently convicted, I deeply regret my role in these crimes and I offer my sincere apology to the family of Trooper Werner Foerster for his murder and my role in it[.]"
On July 7, 2010, the three-member panel established a 120-month FET. On December 8, 2010, the panel issued its statement of reasons, including Acoli's criminal record; the increasing seriousness of his prior offenses over time; the continued commission of crimes after previous sentencing, including a term of probation; that his current incarceration was for multiple crimes; and the ruthlessness of those crimes. Acoli also appealed the decision of the three-member panel.
On February 23, 2011, the Board issued a Notice of Final Agency Decision essentially adopting and reiterating the findings of the prior panels. This appeal followed.
The State subsequently moved to remand the case for reconsideration of Acoli's FET, which we granted. The Board reduced his FET to thirty-six months to comply with the statute. Subsequently, Acoli had a fourth parole hearing on July 18, 2012, was again denied parole, and received a 100-month FET. Thus, the issue of the length of the 120-month FET is not before us.
On appeal, Acoli asserts that the Board did not meet its burden of proving a substantial likelihood that he would commit another crime. Rather, according to Acoli, the Board improperly relied on non-violent and extremely remote offenses over forty-five years old; punitively afforded weight to the gravity of the crimes; and ignored or undervalued that Acoli has had no criminal infractions in over 30 years, no prior violent offenses, and only minor institutional violations while in prison, the last infractions occurring in 1996. Acoli further argues that the Board ignored or undervalued Acoli's "record of counseling, self-improvement, education and programming, the respect he has earned as a peer leader from prison staff, his assignment to the Honor Unit, his consistent work record even at an advanced age, [and] his high achievement in course work," and disregarded his statements and explanations, including his assertion that he no longer espoused violence, while selectively picking over his statements and improperly discounting his admission of guilt and expression of remorse.
Acoli further alleges that the Board inexplicably discounted Dr. Goorwitz's report, which demonstrated that he was cooperative and self-reflective, had abandoned political violence, admitted his involvement in former revolutionary groups, showed genuine remorse, and took responsibility for his crimes, and also ignored Dr. Goorwitz's recommendation that Acoli should be considered for parole. Additionally, according to Acoli, the Board also completely discounted the reports from the federal Bureau of Prisons, which indicated that Acoli would be successful if paroled.
The Board counters that its decision should be affirmed because it is rationally supported by substantial facts in the record and consistent with the applicable law. The Board argues that it "gave substantially more weight to Acoli's current insufficient problem resolution" in his "denial of culpability" for the murder of Foerster, than it gave to his prior criminal record. The Board also asserts that Acoli's inability to articulate why he became involved in violent revolutionary organizations and why his mindset has since changed demonstrated his insufficient problem resolution. The Board further contends that Acoli's refusal to acknowledge his crimes or understand why he committed them and his minimization of his conduct, demonstrates that a substantial likelihood of recidivism exists. The Board argues that it considered all mitigating evidence including the totality of Dr. Goorwitz's report, but concluded that the aggravating factors preponderated. Finally, the Board maintains that its decision "is discretionary and largely subjective in nature," and its assessment of the totality of the facts and circumstances demonstrated that Acoli was not a viable candidate for parole.
We begin by briefly restating our scope of review of a Board decision. The Board has broad power as its "decisions are highly 'individualized discretionary appraisals,'" but its power is not unlimited. Trantino v. N.J. State Parole Bd., 166 N.J. 113, 173 (2001) (Trantino VI) (quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). In determining whether the Board's final decision was valid, the role of the judiciary focuses on three questions:
(1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[Trantino v. N.J. State Parole Bd., 154 N.J. 19, 24 (1998) (Trantino IV).]
The scope of appellate review is narrow and the Board is subject to the same standard as other administrative reviews. Trantino VI, supra, 166 N.J. at 173. We must affirm the administrative action unless it was "'arbitrary, capricious or unreasonable, or not supported by substantial credible evidence in the record as a whole.'" Warren Hosp. v. N.J. Dep't of Human Servs., Div. of Mental Health Servs., 407 N.J. Super. 598, 610 (App. Div. 2009) (quoting SSI Med. Servs., Inc. v. State, Dep't of Human Servs., Div. of Med. Assistance and Health Servs., 14 6 N.J. 614, 620 (1996)).
Moreover, the reviewing court may not substitute its judgment for the fact-finding of an administrative agency. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). "'If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself.'" Ibid. (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988)).
Nevertheless, "the agency's decision will be set aside 'if there exists in the reviewing mind a definite conviction that the determination below went so far wide of the mark that a mistake must have been made.'" Cestari, supra, 224 N.J. Super. at 547 (quoting 613 Corp. v. State, Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)), certif. denied, 111 N.J. 649 (1988). Indeed, "'[w]hen an agency's decision is manifestly mistaken . . . the interests of justice authorize a reviewing court to shed its traditional deference to agency decisions.'" Trantino VI, supra, 166 N.J. at 192 (second alteration in original) (quoting P.F. v. N.J. Div. of Developmental Disabilities, 139 N.J. 522, 530 (1995)). "[A] 'sense of [agency] "wrongness" can arise in numerous ways — from manifest lack of inherently credible evidence to support the finding, obvious overlooking or undervaluation of crucial evidence, a clearly unjust result, and many others.'" Ibid. (second alteration in original) (quoting Clowes, supra, 109 N.J. at 589).
The Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.76, provides that when an inmate is eligible for parole, he shall be released unless a preponderance of the evidence demonstrates that "there is substantial likelihood that the inmate will commit a crime under the laws of this State if released on parole at such time." N.J.S.A. 30:4-123.53 (amended 1997). Thus, when an inmate becomes eligible for parole, there is a "presumption in favor of parole," In re Parole Application of Trantino, 89 N.J. 347, 356 (1982) (Trantino II), and the burden is on "'the State to prove that the prisoner is a recidivist and should not be released.'" Trantino VI, supra, 166 N.J. at 197 (quoting N.J. Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983)). Additionally, "the punitive aspects of a sentence may no longer be considered as an independent ground for denying parole[.]" Trantino II, supra, 89 N.J. at 372. Rather, the seriousness of the crime may be weighed "as an element in determining whether the offender's punishment has been adequate to insure his individual progress toward rehabilitation," insofar as it reflects on his or her likelihood to recidivate. Id. at 373-74.
The Parole Act of 1979 also applies to inmates such as Acoli whose crimes were committed before the effective date of the Act. In re Parole Application of Trantino, 89 N.J. 347, 367 (1982). However, because under the prior Parole Act judges did not set mandatory minimum sentences that eliminated the need for the Board to consider if the inmate had served the punitive portion of his sentence, the Parole Board under the 1979 Act was authorized to consider both punitive and rehabilitation aspects of an inmate sentenced before the new Act, id. at 367-70, at least until the equivalent mandatory minimum had been served. There is no dispute that Acoli has served the necessary time to meet the punitive aspect of his sentence.
Accordingly, the sole question in determining parole fitness here is whether "there is a substantial likelihood that the inmate will commit a crime . . . if released on parole[.]" N.J.S.A. 30:4-123.53 (amended 1997). "Rehabilitation is relevant . . . only as it bears on the likelihood that the inmate will not again resort to crime. It need not be total or full or real rehabilitation in any sense other than there is no likelihood of criminal recidivism." Trantino IV, supra, 154 N.J. at 31.
In determining parole eligibility, the Board must consider the twenty-three non-exclusive factors enumerated in N.J.A.C. 10A:71-3.11(b), including commission of offenses or serious disciplinary infractions while incarcerated; nature and pattern of previous convictions; facts and circumstances of the offense; participation in institutional programs; statements of institutional staff as to readiness for parole; relationships with institutional staff; changes in attitude; personal strengths and motivations; statements of the inmate, the prosecutor's office, and the victim's family; and the results of objective risk assessment instruments. The Board has an obligation to receive and consider relevant information. N.J.S.A. 30:4-123.55(c); see also Cestari, supra, 224 N.J. Super. at 544. It may not rely on selective portions of the record that support its determination of likely recidivism while overlooking or undervaluing conflicting information. Trantino VI, supra, 166 N.J. at 189-90.
Here, the Board first points to Acoli's prior criminal record, the increasing seriousness of his offenses, and his prior probation violation as evidence of his likely recidivism. The most recent offense considered by the Board took place thirty-eight years before it rendered its final decision. The unspecified probation violation, which did not result in termination of Acoli's probation, took place forty-two years before the Board's decision. The remaining two incidents were even further in the past.
Given the extreme remoteness of these crimes, in our view the Board acted arbitrarily and capriciously in considering them as evidence that Acoli is likely to commit a crime in the future. In Trantino VI, the Supreme Court held that much more serious events that occurred more than thirty-seven years earlier were too remote to rely on as evidence of likelihood of future crimes, and the Board's arbitrary and capricious consideration of such events "undermined the deference that courts ordinarily confer on agency decisions." Id. at 121. Although the Board was entitled to consider such factors under N.J.A.C. 10A:71-3.11(b), the Court found "[t]he Board's reliance on evidence of such remote events was a makeweight to compensate for the lack of substantial evidence to support the Board's conclusions." Ibid. Similarly, here, the low level nonviolent offenses and the violation of probation for an unknown reason over forty years ago are basically insignificant to the issue of whether seventy-four-year-old Acoli is likely to commit a crime if paroled. We are convinced that the Board's utilization of such distant events was arbitrary and did not support its conclusion.
The Board also gave weight to Acoli's multi-crime conviction in denying parole. We are at a loss to understand how Acoli's conviction for one event involving multiple crimes would lead to a current likelihood to recidivate thirty-eight years later. Acoli's crimes were not separate and distinct; rather, they all arose from the same terrible event. In this context, we do not see how the multiple crimes make it more likely that he will commit another crime if released. See Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 43 (App. Div. 2003).
The Board appeared to rely most heavily on its evaluation that Acoli lacked insight into his criminal behavior as he minimized his conduct and denied "key aspects of his commitment offenses." Specifically, the Board points out that he did not accept responsibility for his crimes because Acoli's version of the crimes was not consistent with the established facts, he did not adequately explain how and why he transitioned from violent to non-violent thinking, and his call to the psychologist showed "impulsive and questionable judgment."
Acoli acknowledged that at the time of the crimes he was involved in revolutionary groups, was armed with a weapon, and was traveling with a wanted fugitive. Yet, Acoli consistently espoused the same sequence of events since his arrest, which admittedly differed from the State's testimony and evidence presented at trial that resulted in his conviction. In particular, Acoli has alleged that he did not see who fired first as he was on the other side of the car; during the struggle with Foerster he was grazed by a bullet that rendered him temporarily unconscious; and when he regained consciousness Foerster was dead, and Harper had retreated. Nevertheless, he has accepted full responsibility for the murder of Foerster and admitted he should not have struggled with the trooper and prevented him from aiding Harper. In addition he has articulated to Dr. Goorwitz his remorse, which she found credible.
There were no eyewitnesses to Foerster's shooting and the Middlesex County Prosecutor in a letter to the Board opposing Acoli's parole before the hearing, pointed out that Chesimard might have fired Foerster's gun.
Similarly, in Trantino IV, supra, the Board "based its successive denials of parole in large measure on the fact that Trantino was avoiding responsibility for [his] crimes." 154 N.J. at 33-34. The Board refused to grant parole until Trantino fully admitted his role in his murders, which Trantino did not deny responsibility for, but claimed that he could not remember the details of because of the drugs and alcohol he had consumed that night. Id. at 34-35. Since Trantino's absence of memory was consistent, the Supreme Court found that he could not and would not "ever be able to remember actually pulling the trigger." Id. at 35, 38. As such, the Court precluded the Board from relying on his lack of recollection in its parole denial. Trantino VI, supra, 166 N.J. at 193-94.
Here, Acoli's consistent, but flawed, forty-year-old recollection of the events is not likely to change. The Board's reasoning that Acoli is likely to commit another crime if he does not recall the State's version of his crime has the draconian effect of condemning him to prison for the rest of his life. However, in light of Acoli's acceptance of responsibility for his crimes and the psychologist's opinion that Acoli was honest in his expression of remorse, regret, and rejection of violence, the fact that his version differs from that of the State, in and of itself, should not stand in the way of Acoli's parole. Id. at 193; see also Kosmin, supra, 363 N.J. Super. at 42 ("We are also of the view that the Parole Board cannot insist that appellant's insight into her criminal behavior is impaired by reason of the fact that she will not admit that she was the actual shooter.").
Additionally, the Board's finding that Acoli did not explain how or why he transitioned from violent to non-violent ways of thinking is not supported by the record. In formulating this opinion, the Board completely discounted, without providing any reason, both Acoli's explanations during the hearing and in his subsequent letter of mitigation, as well as Dr. Goorwitz's evaluation, which opined that Acoli's ideas had changed due to his age, participation in counseling, and the change in the political climate. Acoli explained to the panel why he became involved in the black power political movement of the 1960s and 1970s, to struggle for freedom and equality, and why now he feels that, although he believes change is still needed, it can be accomplished through non-violent means. Included in his explanation, he detailed how the election of President Obama demonstrates that change can come without resorting to violence.
Acoli, who was born in 1937 and grew up in Texas, explained to the panel that he became a revolutionary in the sixties because he perceived racial injustice and wanted to "free black people" and "to struggle . . . for equality," and, as a Black Panther, he saw himself as "someone who was trying to help black people achieve freedom and equality." The panel appeared to find this explanation inadequate because Acoli was college educated and held decent jobs, which we find to be a non-sequitur. We hasten to point out that there is never a justification for unlawful violence, but note that Acoli was giving the reasoning that caused him to resort to violence.
Acoli also expressed his belief that there still needed to be further societal change in order to obtain complete equality for everyone. In response to the panel's questioning, he stated that he still felt that socialism was a more humane system than capitalism. He also noted that the Black Panther movement he was involved in no longer existed.
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Further, the Board's opinion that Acoli's attempt to contact Dr. Goorwitz showed likely recidivism because he acted impulsively and with poor judgment completely disregards the doctor's subsequent recommendation to grant Acoli parole. Additionally, the doctor pointed out that the next time Acoli needed to contact her, he did so through appropriate channels, which demonstrated that he immediately learned from his error. The Board also chose, without explanation, to disregard Acoli's clarification of his action. Most importantly, the Board does not explain, and it is not self-evident, how this one-time lapse in following prison protocol, which was not repeated in the next similar circumstance, demonstrated a substantial likelihood of committing future crimes.
Moreover, although the Board listed as mitigation the programs Acoli had participated in, it did not describe why it completely disregarded his lengthy institutional success, his feasible parole plan and positive support system, the positive reports from the federal psychology services staff, and the numerous positive aspects of Dr. Goorwitz's report, which is uncontradicted in the record. Although the decision to grant or deny parole is ultimately a legal decision and not a medical one, see Trantino VI, supra, 166 N.J. at 173-74, the Board must still base its decision on the application of the statutory criteria to all of the relevant evidence, not just the evidence that supports its decision. See id. at 175.
In sum, we conclude that the record shows that the Board acted arbitrarily and capriciously in denying Acoli parole. It improperly relied on extremely remote events, unfairly required Acoli to admit to the State's version of events, ignored Acoli's explanations of why he has turned from violence, overemphasized the phone incident, and discounted all the positive information presented, including the opinion of the evaluating psychologist. Most importantly, the evidence before the Board failed to demonstrate that Acoli was substantially likely to commit another offense if released.
Based upon the record before us, we are constrained to determine that the Board's findings that Acoli is likely to engage in criminal activity in the future if paroled is not supported by the record. "We do not lightly reverse a parole-denial decision by the Board." Kosmin, supra, 363 N.J. Super. at 43. However, where, as here, the Board's conclusions "are so wide of the mark and so fundamentally contradicted by the record" we are compelled to do so. Ibid.
Make no mistake, we are completely appalled by Acoli's senseless crimes, which left a member of the State Police dead and another injured, as well as one of Acoli's associates dead and the other injured. But Acoli has paid the penalty under the laws of this State for his crimes. Because the punitive aspect of his sentence has been served, he has a "federally-protected liberty interest" in being paroled unless the State proves a "substantial likelihood" that he will commit another crime. Trantino VI, supra, 166 N.J. at 197 (internal quotation marks and citation omitted). The record simply does not support further denial of parole. The Board must now expeditiously set conditions for parole, including considering Dr. Goorwitz's recommendation of placement in a halfway house facility in anticipation of release.
Reversed and remanded to the Board for proceedings consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION