Opinion
DOCKET NO. A-2943-13T4
08-03-2015
WILLIAM THOMAS, JR., Plaintiff-Appellant, v. NEW JERSEY STATE PAROLE BOARD, Defendant-Respondent.
Eric J. Marcy argued the cause for appellant (Wilentz, Goldman & Spitzer, attorneys; Mr. Marcy, of counsel and on the briefs.) Lisa A. Puglisi, Assistant Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Puglisi, of counsel and on the brief; Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and Hoffman. On appeal from the New Jersey State Parole Board. Eric J. Marcy argued the cause for appellant (Wilentz, Goldman & Spitzer, attorneys; Mr. Marcy, of counsel and on the briefs.) Lisa A. Puglisi, Assistant Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Puglisi, of counsel and on the brief; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff, William Thomas, appeals from the March 25, 2013 final decision of the New Jersey State Parole Board (Board) denying his application for parole and establishing a 120-month future eligibility term (FET). In 1982, Thomas pled non vult to brutally murdering two teenagers and received two concurrent life sentences. Thomas was first eligible for parole in 1995. He was denied parole at that time and on five occasions thereafter.
Thomas argues that the Board improperly considered only his inability to recall the details of his crime and ignored other relevant factors, including his history of positive psychological evaluations, in deciding whether he was likely to reoffend. After a close examination of the record, we reverse the Board's denial of Thomas's parole application, and we remand this matter to the Board for reconsideration. Because of the time that has passed, we direct that such reconsideration be completed within forty-five days.
I.
We discern the following facts from the record. On May 6, 1980, Thomas, then seventeen years old, and his nineteen-year-old cousin, William Mancuso, were driving toward Northfield, New Jersey, and they picked up two teenaged hitchhikers walking home from the beach, a seventeen-year-old male and a fifteen-year-old female. Thomas and Mancuso had been drinking alcohol, smoking marijuana, and using methamphetamines. Mancuso drove the group to a wooded area in Egg Harbor Township where Thomas murdered the two teens.
According to Thomas, he was extremely drunk and high at the time of the murders and to this day does not remember most of the details of his crimes. However, at a prior Board hearing, the State claimed its investigation revealed that Thomas was romantically attracted to the female teen, and that he drove to a wooded area in order to arrange time alone with the girl. On arrival, Mancuso and the male hitchhiker walked to a nearby pond leaving Thomas alone with the female. When the young men returned, Mancuso saw the female victim sitting on the ground when Thomas began striking her head and upper torso with a tire iron. The female victim attempted to flee, at which time Mancuso joined the attack. When the male teen attempted to defend his female companion, Thomas struck him with the same metal weapon. The two later died from their injuries.
The next morning, Thomas, claiming no memory of the attack, nevertheless left the State after Mancuso described what had happened. Then in early June 1980, when Thomas was still seventeen and not yet a suspect, he joined the army where he completed basic training and left the country for a station in Germany. Meanwhile, on June 12, 1981, Mancuso told police that he was present when Thomas murdered both teens. Thereafter police notified the U.S. Army that Thomas was being charged with the murders and Thomas was returned to New Jersey.
In February 1982, Thomas entered his non vult plea to both murders. Three days later, during an interview for a pre-sentence investigation, Thomas claimed he did not kill the female victim, but rather Mancuso killed her and blamed Thomas. Thomas was sentenced to two concurrent life sentences but according to the sentencing judge, he "failed to impose any minimum parole eligibility and elected not to impose consecutive terms because of [Thomas's] age, his lack of any prior arrests, his pursuit of a productive career, and his admission of guilt which is generally recognized as the first step to rehabilitation."
At present, Thomas is fifty-two years old, having been incarcerated for thirty-three years. During his time in prison, Thomas has remained infraction-free while participating in a multitude of rehabilitation programs and therapies. In 1988, Thomas began attending weekly group therapy for behavior modification and emotional control. In 1991, Thomas completed a substance abuse program and has been attending meetings on a regular basis since that time. That same year, Thomas was classified as gang minimum status, the lowest level of security classification for an inmate with a life sentence. Throughout his prison term Thomas completed about twenty multi-week programs for self-improvement on such topics as "Successful Employment and Lawful Living," "Cage Your Rage, Anger Manager," and "Substance Abuse Personality Awareness."
In addition to his extensive participation in self-help programs, Thomas earned a GED in 1993, a certificate in refrigeration in 1994 and completed various vocational training programs. Since at least 1996, Thomas worked as a twenty-four-hour on-call electrician at three different prisons repairing electrical equipment inside the prison including cell doors, switch motors, and the cell locking devices, with minimum supervision. His work supervisors have consistently praised Thomas for his ability to work with others and help inmates, and for "being a pleasure to have working in the shop."
Thomas underwent individual psychotherapy sessions beginning in 1992, and in 1993, when a staff shortage caused the therapy to be suspended, Thomas formally requested to be placed on a waiting list to continue the sessions once they became available again. The ten psychological evaluations performed on Thomas between, 1991 and 2003 reported that Thomas, had "no onset psychopathology," and "no sign of any psychiatric symptoms," with "good insight."
On December 20, 2000, Dr. David Gomberg, a New Jersey Department of Corrections psychologist at East Jersey State Prison, reported that Thomas had "participated in many programs," and maintained good impulse control and judgment. He referred Thomas for one on one psychotherapy to prepare him for parole. However, on September 3, 2003, Dr. Carlos Perez, another Department of Corrections psychologist at East Jersey State Prison, evaluated Thomas and at that time determined that he had "no need for individual therapy." Despite that conclusion, Thomas elected to attend over thirty individual rabbinical counseling sessions between 2003 and 2009.
In December 2012, in preparation for Thomas's fifth parole review, the subject of this appeal, Dr. Richard Murcowski, a New Jersey Department of Corrections psychologist at Northern State Prison, conducted a psychological evaluation of Thomas and, in his report, said he suspected Thomas was lying about his lack of memory of the crime:
[Thomas] had just turned 17 at the time of the murders. He claimed that he had been doing speed, crack, and alcohol at the time and could not remember much of the details of the crime; however, records from the Parole Board hearing indicated that Mr. Thomas kept an arm[']s length interest in the murder investigation. As an attempt to
distance himself from his crime and culpability he told this evaluator that he had been up for two days, high on amphetamines, pot, and then added alcohol to that combination. He contended that he spent much of the time in a black out. Yet the account of what he shared with those who would investigate this crime suggested otherwise.
Dr. Murcowski noted Thomas's prior and present Level of Service Inventory-Revised (LSI-R) scores — an assessment tool which predicts risk of recidivism. LSI-R assessments conducted by Murcowski in 2004, 2005, and 2008 each reflected a score of thirteen, which is within the low risk range. For the 2012 report, Murcowski revised Thomas's LSI-R score to twenty, still representing a low risk of recidivism "with a 20% chance of re-arrest and a 13.3% change of reconviction within 2 yrs of release." According to Murcowski, the increased score reflected "new information available to this evaluator from the Parole Board interview and changes in Mr. Thomas's status with his now ex-wife."
In 1997 Thomas married but after being denied parole for the third time in 2010, Thomas claimed he wanted to "release" her and resume their relationship only if he was granted parole. --------
On March 25, 2013, a two-member panel held a parole hearing where Thomas was asked to explain his lack of any detailed personal memory of the crimes, given his apparent ability to recount details at previous parole hearings. Thomas replied that, "I've tried through the years I've tried to whenever I get information or anyone tells me something, I take possession of it and . . . take personal . . . responsibility for it." Thomas added,
Well they . . . would ask me questions about the crime, and I tried my best to - - from what I've learned, and from what I've been told, and from what I've read, my co-defendant. I try to integrate it and take personal responsibility for it.
. . . .
I think it was entirely me that I came to that point in my life where I was so violent and so filled with hatred and so angry that - - that it was just a matter of time before I exploded somewhere.
. . . .
[B]efore then I had been - - my entire life I had been bullied, and picked on, beaten up after school. And I was a very angry person. My family, like other kids in the school. And I had gotten it into my head that if I became violent, they would leave me alone.
When a panel member asked "What's to prevent you from being someone that kills two innocent people again?" Thomas answered,
I think it's [] entirely my responsibility, I have to take personal responsibility every day every minute for my own emotions, my own reactions, my own actions, and make conscious and aware choices.At the end of the hearing, the panel denied parole and referred the case to a "three-member panel for the possible establishment of an [FET] that may be in excess of the administrative guidelines."
. . . .
I believe I did it. I accept that I've done it. And I take personal responsibility for it morally, ethically. And in my own behavior.
On July 17, 2013, the three-member panel established a ten-year future parole eligibility term stating that Thomas had been denied parole based on "insufficient problem resolution," because he lacked insight into his violent behavior and minimized his actions by failing to recall the details of his crimes and for having a false memory of the victims drinking alcohol with Thomas and Mancuso. The panel found that it could not "accurately assess" Thomas because he "tempered [his] attempts at compunction by emphasizing that [he had] absolutely no personal remembrance of the crimes."
The panel concluded that Thomas was:
an extremely troubled individual who cannot face his past actions and come to terms with why you reacted and behaved in the manner that you did.Also, the panel "believe[d]" a ten-year parole eligibility was warranted instead of the presumptive, statutory twenty-seven months because "after thirty-one (31) years of incarceration [Thomas] cannot identify [his] violent criminal personality characteristic(s); and failed to develop adequate and appropriate insight in recognizing issues that would return [him] to future criminal behavior. . . ; and continue[s] to minimize [his] deadly actions by emphasizing a lack of memory."
It [was] completely unacceptable for an individual who has been incarcerated for as long as [Thomas] had, to believe it to be normal, correct and sound to not be able to recollect any of his culpable violent actions.
On February 12, 2014, the Board issued a Notice of Final Agency Decision essentially adopting and reiterating the findings of the prior panels. This appeal followed.
II.
On appeal, Thomas asserts that the Board failed to meet its burden of proving by a preponderance of the evidence that he would commit another crime. According to Thomas, the Board arbitrarily relied only on the select portions of the record that could support denying parole rather than reviewing the record in its entirety. Specifically, the Board ignored or undervalued Thomas's age at the time of his crimes, his extensive participation in counseling and self-improvement programs, his positive psychological evaluations, and his infraction-free record throughout his incarceration, while improperly emphasizing Thomas's lack of memory as evidence of his "insufficient problem resolution."
The Board responds that its decision is supported by sufficient credible evidence in the record and should be therefore affirmed. The Board contends that it properly weighed the statutory factors it may consider when making a parole determination; for Thomas these factors included, "presently incarcerated for a multi-crime conviction; and Thomas's insufficient problem resolution." Finally, the Board maintains that it considered all mitigating factors but nonetheless found that the aggravating factors preponderated.
We begin by articulating our scope of review for parole determinations - whether the Parole Board acted arbitrarily or abused its discretion in rendering its decisions. In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994). As state agencies, actions of the Parole Board are presumptively valid and reasonable. Alevras v. Delanoy, 245 N.J. Super. 32, 35 (App. Div. 1990), certif. denied, 126 N.J. 330 (1991). Our review is also limited to a determination of whether the agency's findings could reasonably have been reached on the credible evidence in the record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); N.J. State Parole Bd. v. Cestari, 224 N.J. Super. 534, 547 (App. Div.), certif. denied, 111 N.J. 649 (1988). We will set aside an agency decision only "'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. N.J., Div. of State Lottery, 210 N.J. Super. 485, 495 (App. Div. 1986)).
The Board's decisions are considered "highly 'individualized discretionary appraisals.'" 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)). Consequently, "the Board 'has broad but not unlimited discretionary powers'" in reviewing an inmate's parole record and rendering a release decision. Ibid. (quoting Monks v. N.J. State Parole Bd., 58 N.J. 238, 242 (1971)); see also Greenholtz v. Nebraska Penal & Corr. Complex Inmates, 442 U.S. 1, 9-10, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668, 677 (1979) ("The parole-release decision . . . depends on an amalgam of elements, some of which are factual but many of which are purely subjective appraisals by the Board members based upon their experience with the difficult and sensitive task of evaluating the advisability of parole release.").
Because Thomas's crimes were committed in 1980, the Board's determination is governed by the Parole Act, as amended in 1979, which provides that
[a]n adult inmate shall be released on parole at the time of parole eligibility, unless [the] information supplied [to the Parole Board] or developed or produced at a hearing . . . indicates by a preponderance of the evidence that there is a 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(a).]
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), with the burden resting 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)). Further, a decision not to release must be regarded as arbitrary if it is not supported by a preponderance of evidence in the record. Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 42 (App. Div. 2003) (citing Cestari, supra, 224 N.J. Super. at 547).
Accordingly, the Parole Board's sole inquiry 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.
To determine the likelihood of recidivism, 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; status of family or marital relationships at the time of eligibility; statement by the court reflecting the reasons for the sentence imposed; and the results of objective risk assessments. It is the Board's obligation to receive and consider all relevant information, N.J.S.A. 30:4-123.55(c), and it may not select portions of the record to support its determination of likely recidivism while overlooking conflicting information. Trantino VI, supra, 166 N.J. at 175, 189-90.
Here, the Board singularly focused upon the admittedly horrific details of Thomas's crimes, and his "insufficient problem resolution" in the form of a contrived memory lapse, as evidence of likely recidivism. In its brief the Board listed Thomas's "present[] incarcerat[ion] for multi-crime conviction" as a factor it considered in denying parole; however, multiple crimes "part of the same ongoing event" do not automatically make it more likely that appellant will commit another crime if released. Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28, 43 (App. Div. 2003). Accordingly, the Board does not explain, and it is not self-evident how a single violent rampage that resulted in two murders created a probability that Thomas will kill again. Therefore, we cannot afford this factor much weight, if any, in determining whether the State met its burden of showing that Thomas is a likely recidivist.
Next, we turn to the factor on which the Board most heavily relied - Thomas's purported lack of personal memory of his crimes resulting in "insufficient problem resolution." First, we note that in Trantino IV, supra, Trantino claimed that he could not remember the details of his crime because of the drugs and alcohol he had consumed. 154 N.J. at 34-35. The Supreme Court found that since the memory lapse had been consistent he was likely to never remember actually committing his crimes and as such, the Board was precluded from relying on lack of memory as a basis to deny parole. Trantino VI, supra, 166 N.J. at 193-94.
Here, the Board determined that Thomas was feigning memory loss in an attempt to minimize his deadly conduct, thereby preventing him from understanding the motivating factors which prompted such horrific and violent murders. The Board found it incredible that Thomas could not remember his crimes because he made statements in prior parole hearings regarding his participation in the murders.
However, there is no evidence in the record to support the Board's contention that Thomas's lack of memory is less than genuine and, apart from the issue of recollection, the record is replete with evidence supporting his acknowledgement of responsibility of his crimes as sincere and legitimate. Psychological evaluations as far back as 1991 consistently report that Thomas accepted responsibility for his crimes even while claiming he was under the influence of drugs and alcohol and "lacked control over his actions." Additionally, Thomas's parole hearing testimony makes clear that Thomas accepts full responsibility for his crimes and possesses insight into his motivations for committing such horrific violent acts, namely that he was an angry, bullied, drug-addicted youth who resorted to violence to solve his problems. And now, as a fifty-year-old man who has attended programs and therapy for over thirty years, he is a different person who maintains control over his actions.
In contrast, the prior parole hearing statements relied upon by the present Board to prove Thomas lied about his memory loss are absent from the record before us. And in any event, that Thomas's accounting of events differs from that of the State, including Thomas's memory that the victims were drinking alcohol, cannot stand as the sole basis for denying Thomas parole. Trantino VI, supra, 166 N.J. 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.").
Moreover, although the Board noted, as mitigating factors, Thomas's participation in programs and counseling, his vocational certifications, and his infraction-free status maintained throughout Thomas's entire prison stay, it failed to address the ten positive psychological evaluations performed on Thomas between, 1991 and 2003 all of which consistently reported that Thomas had "good insight" and maintained good impulse control and judgment.
We conclude that the record here does not support the conclusion that recidivism is likely. In denying parole, the Board improperly relied on prior parole hearings not part of the record and credited the summaries of Thomas's statements made by interested third parties over Thomas's own non-contradictory statements that he lacks memory of an event occurring over thirty years ago. Further, the Board illogically concluded that Thomas's false memory of the victims' drinking precludes him from having a lack of memory of other events.
Finally, the Board discounted positive reports and ignored the numerous positive psychological evaluations which contradicted the latest evaluation by Murcowski. We place little confidence in Murcowski's most recent report which inexplicably increased Thomas's recidivism score based on Thomas divorcing his wife and "new information available to this evaluator from the Parole Board interview." Not only is the report contradicted by the doctor's prior reports, but also the so-called "new information" is unidentified and not part of the record.
Therefore, since the Board's decision is so wide of the mark and so fundamentally contradicted by the record, we reverse the parole-denial decision. The Board must, within forty-five days, reconsider Thomas's eligibility for parole consistent with this opinion.
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