SUNDIATA ACOLI VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5645-16T2
SUNDIATA ACOLI, a/k/a
CLARK EDWARD SQUIRE,
APPROVED FOR PUBLICATION
Appellant,
December 27, 2019
v. APPELLATE DIVISION
NEW JERSEY STATE
PAROLE BOARD,
Respondent.
_____________________________
Argued September 9, 2019 – Decided December 27, 2019
Before Judges Fasciale, Rothstadt and Moynihan
(Judge Rothstadt dissenting).
On appeal from the New Jersey State Parole Board.
Bruce Ira Afran argued the cause for appellant.
Christopher Josephson, Deputy Attorney General,
argued the cause for respondent (Gurbir S. Grewal,
Attorney General, attorney; Melissa H. Raksa,
Assistant Attorney General, of counsel; Christopher
Josephson, on the brief).
The opinion of the court was delivered by
FASCIALE, P.J.A.D.
In accordance with remand instructions from the Supreme Court, Acoli
v. N.J. State Parole Bd. (Acoli II), 224 N.J. 213, 217 (2016), the New Jersey
State Parole Board (the Board) conducted a full Board in-person hearing to
complete Acoli's administrative parole process. The Court remanded solely on
procedural grounds, disagreeing with our earlier determination that a full
Board hearing was not required. Id. at 232. Acoli—a convicted murderer of a
State Trooper—appeals from the Board's unanimous1 June 21, 2017 final
agency decision (final decision) denying parole and imposing a 180-month
Future Eligibility Term (FET).
At the remand hearing, the Board extensively questioned Acoli about a
multitude of subjects, including his prior assertion that he "blacked out," which
Acoli maintained rendered him unable to remember how the trooper died. But
at the full Board hearing, Acoli provided these details: he explained that while
he struggled with the trooper, another trooper "probably" shot the trooper with
a "friendly fire shot." That explanation—which necessarily required that he
was conscious during the struggle when the "friendly fire shot" occurred—
1
The individuals who comprised two- and three-member Board panels, which
previously denied parole, did not participate in the full Board hearing. See
N.J.S.A. 30:4-123.58(a) (stating that any Board member who participated in
the decision from which the appeal is taken may not participate in the
disposition of that appeal).
A-5645-16T2
2
contradicted Acoli's previous assertion that a bullet grazed his head, rendering
him temporarily unconscious.
Our review of the final decision comes to us on a different record. In
addition to considering a critical confidential report by a new psychologist, the
Board extensively questioned Acoli, which is demonstrated by the 286-page
transcript of the hearing. The Board considered the entire administrative paper
record, the new psychological evaluation, and, importantly, Acoli's own
responses, leading it to conclude—based on a preponderance of the evidence—
that there was a substantial likelihood that Acoli would commit another crime
if paroled.
On this more developed record, we conclude the Board applied the
correct law, the record contains substantial credible evidence to support its
findings, and there is no basis to determine that the Board clearly erred in
reaching its conclusion. The Board's final decision is not arbitrary, capricious,
or unreasonable.
We therefore affirm.
I.
In 1973, Acoli murdered State Trooper Werner Foerster and assaulted
State Trooper James Harper. After a lengthy trial, a jury found him guilty of
A-5645-16T2
3
"murder; atrocious assault and battery; assault and battery; assault with an
offensive weapon; assault with intent to kill; illegal possession of a weapon;
and armed robbery." Id. at 218. Acoli received life in prison for the murder
conviction. The judge imposed consecutive sentences of "ten to twelve years
of imprisonment for his conviction for assault with intent to kill; two to three
years of imprisonment [for his conviction] for illegal possession of a weapon;
and twelve to fifteen years of imprisonment [for his conviction] for [the]
armed robbery." Ibid. The aggregate sentence equaled life plus twenty-four to
thirty years. Ibid.In 2010, Acoli became eligible for parole. 2 A hearing officer referred
the matter to a Board panel for a hearing. On March 4, 2010, a two-member
Board panel interviewed Acoli and concluded that "a substantial likelihood
exists that [he] would commit a new crime if released on parole at this time."
Ibid. On July 7, 2010, a three-member Board panel set a 120-month FET.
2
The Board previously denied Acoli parole twice. In a decision dated January
3, 1994, the Board cited Acoli's "continued antisocial behavior" and his failure
to "change[] appreciably during [his] incarceration" as factors contributing to
his substantial likelihood to commit a new crime if released. And in its written
decision dated August 11, 2004, the Board noted that "[Acoli's] denials and
version of events are contrary to logic and to the evidence at trial," and that he
was "not credible on numerous factual matters." The Board denied him parole
because of this, and because the Board thought that Acoli's "radical and
revolutionary politics have not fundamentally changed."
A-5645-16T2
4
Acoli appealed to the full Board, which conducted a "paper hearing."
That hearing was substantially different than the Board's hearing on remand.
The "paper hearing" entailed consideration of the record before the hearing
officer and the two- and three-member panels. Unlike in the full Board
hearing leading to this appeal, the Board did not hear testimony or create its
own record. On February 23, 2011, the Board upheld the denial of parole and
the establishment of the 120-month FET.
Acoli appealed to us. Looking at the administrative record and the
merits of the Board's February 23, 2011 decision, we reversed the denial of
parole and concluded the Board's basis for denying parole was arbitrary. This
court then ordered the Board to set conditions for Acoli's parole. See Acoli v.
N.J. State Parole Bd. (Acoli I), No. A-3575-10 (App. Div. Sept. 29, 2014) (slip
op. at 10). On procedural grounds, the Board unsuccessfully sought
reconsideration of our judgment, solely contending that a full Board in-person
hearing was required before proceeding directly to release.
The Supreme Court granted the Board's petition for certification,
interpreted N.J.S.A. 30:4-123.55(f),3 and agreed with the Board that it was
3
The statute provides in pertinent part:
(continued)
A-5645-16T2
5
entitled to conduct a full hearing. The Court remanded with instructions for a
"full Board in-person review and hearing of a convicted murderer prior to his
or her parole release." Acoli II, 224 N.J. at 217. As to the merits of Acoli's
parole, the Court stated:
We express no view on what the outcome of that full
assessment should be. Whatever it shall be, there will
be a right of appeal to the Appellate Division. If
Acoli is denied parole, then that would be the
appropriate time at which the Appellate Division
might have occasion to consider whether the unusual
remedy of judicially ordered parole of a convicted
murderer might be in order. However, that possibility
must await completion of the parole process in its
entirety.
[Acoli II, 224 N.J. at 232.]
On June 8, 2016, the Board conducted the hearing. Board members
extensively questioned Acoli and gave him an opportunity to read a prepared
statement. The Board considered the entire record before it, including the new
(continued)
Notwithstanding the provision of any other law to the
contrary, if an inmate incarcerated for murder is
recommended for parole by the assigned board
member or the appropriate board panel, parole shall
not be certified until a majority of the full parole
board, after conducting a hearing, concurs in that
recommendation. The board shall notify the victim's
family of that hearing and family members shall be
afforded the opportunity to testify in person or to
submit written or videotaped statements.
A-5645-16T2
6
confidential psychological evaluation, which had a significant impact on the
Board's decision.
On June 8, 2016, the full Board denied parole. On that date, the Board
rendered its "Panel Decision," which reflects that the Board found—once
again—that there existed "a substantial likelihood" that Acoli "would commit a
new crime if released on parole." After further documenting the consideration
of multiple mitigating factors, and as part of its conclusion that Acoli lacked
insight into his criminal behavior, the Board stated:
[Acoli] cannot articulate how he has changed his anti-
social thought patterns. [He] [p]resents as continuing
to believe his actions were justified. [He] has no
understanding why he believed violence was
necessary to affect social change, nor does he
demonstrate understanding how his criminal thinking
pattern has changed.
The next day, the Board notified Acoli that "establishing a [FET] within
the Board's presumptive schedule may be inappropriate due to your lack of
satisfactory progress in reducing the likelihood of future criminal behavior."
The Board then referred the FET issue to the full Board. On November 16,
2016, the full Board established a 180-month FET, and on December 22, 2016,
the Board rendered a comprehensive written decision for its FET
determination.
A-5645-16T2
7
In its final decision (addressed to defense counsel), the Board stated it
was responding to Acoli's "administrative appeal . . . of the Board's June 8,
2016 decision to deny [Acoli] parole[,] and the Board's November 16, 2016
decision[,]" which established the 180-month FET. The Board rejected Acoli's
argument that it failed to apply the "post-August 19, 1997" parole release
standards. The Board stated:
In accordance with New Jersey statutes,
Administrative Code, and court decisions, the standard
for parole where the committed offense(s) occurred
prior to August 19, 1997, is whether the
preponderance of evidence indicates a substantial
likelihood that an inmate would commit a new crime
if released on parole. The Board finds that [Acoli's]
commitment offenses occurred in 1973 and that
therefore, it is the "substantial likelihood" standard
that applies to his case.
In its final decision, the Board acknowledged Acoli's additional
contentions pertinent to the denial of parole. Acoli argued that the Board
withheld confidential information, excluded favorable information, violat ed
his due process rights, ignored material facts, and rendered an excessive FET.
The Board acknowledged those arguments and addressed them in the final
decision.
As to Acoli's assertion that the Board violated his due process rights, the
Board explained that it "carefully and thoroughly reviewed all the reports
contained in the case file," and reached its decision "on the totality of the
A-5645-16T2
8
information in the administrative record." The Board noted that as part of the
full hearing on remand, it gave Acoli the opportunity to participate and provide
information. Indeed, Board members thoroughly questioned Acoli, and he
read a prepared statement that he and his friend drafted. The Board contended
it did not violate his due process rights because it denied parole after fully
applying the requirements of N.J.A.C. 10A:71-3.11 (setting forth multiple
factors considered at parole hearings).
In the final decision, the Board rejected Acoli's argument that it failed to
consider material facts. Acoli maintained that the Board did not consider his
age, his lack of prior convictions for violent crimes, his listing as infraction -
free in a lesser security status, his good institutional work record, and his
parole plans. Acoli specifically contended that he led a crime-free life for
roughly forty years, and that he took "full responsibility" for the trooper's
death. The Board explained its reasons for denying parole, which we have
partially quoted:
[The] serious nature of offense (homicide of a law
enforcement officer); prior offense record noted;
nature of criminal record increasingly more serious;
committed to incarceration for multiple offenses; prior
opportunity on probation has failed to deter criminal
behavior; and commission of current offense while on
recognizance bail. Furthermore, based on [Acoli's]
responses to questions posed by the Board at the time
of the [full] hearing [on remand], the pre-parole
report, and the documentation in the case file, the
A-5645-16T2
9
Board determined that [Acoli] exhibited insufficient
problem resolution, specifically, that he lacked insight
into his criminal behavior; that he denied his offense,
and that he minimized his conduct. The Board
[repeated], "[Acoli] cannot articulate how he has
changed his anti-social thought patterns. [Patterns] as
continuing to believe his actions were justified. Has
no understanding why he believed violence was
necessary to affect social change, nor does he
demonstrate understanding how his criminal thinking
pattern has changed." The Board . . . relied on
confidential material and, pursuant to N.J.A.C.
10A:71-2.2(c), identified for the record the nature of
the confidential information. The Board also
considered [Acoli's] risk assessment evaluation score
of [twenty], which indicates a moderate risk of
recidivism.
Additionally, the Board noted as mitigation: minimal
offense record; all opportunities on community
supervision completed without violations; infraction
free since last panel; participation in programs specific
to behavior; and participation in institutional
programs.
....
[T]he Board reviewed [Acoli's] entire record in
rendering its decision. His age and personal and
medical histories; his criminal history; his record of
rehabilitative program participation (including each of
those programs referenced in [his] [administrative]
appeal); his current custody status and institutional
work history; and his infraction-free status (since his
last Board panel hearing); are all matters of record
. . . . [T]he Board appropriately noted as mitigation on
the Notice of Decision: minimal offense record; all
opportunities on community supervision completed
without violations; infraction free since last panel;
participation in programs specific to behavior; and
A-5645-16T2
10
participation in institutional programs. As a result, the
Board . . . did not solely base its decision to deny
parole on the negative aspects in the record, rather, the
Board . . . based its decision on the entire record
governed by the factors set forth in . . . N.J.A.C.
10A:71-3.11.
....
[T]he Board . . . consider[ed] [Acoli's] parole plans
. . . which includ[ed] his proposed place of residence
and his employment plans [and] noted on the Case
Assessment at the time of his [i]nitial [p]arole
[h]earing . . . . Additionally, the Board routinely
reviews the plans submitted by the inmate for
consideration and is therefore aware of significant
information such as employment plans, residence,
community and family support.
....
Lastly, [Acoli] contend[s] that the Board did not
consider that [Acoli] has taken . . . "full
responsibility" for [the trooper's] death . . . . The
Board . . . conducted [Acoli's] hearing to determine
his suitability for parole. The Board had the ability to
ask [Acoli] questions and to review his case to
evaluate whether he . . . gained the problem resolution
necessary to ensure that there is not a substantial
likelihood that he would commit a crime if released on
parole. The Board determined, based on its interview
[of Acoli], and its review of the case file, that [Acoli]
does not demonstrate the insight necessary to be a
viable candidate for parole release at the present time.
Although he may believe that he has [] made progress
[] sufficient to ready him for parole release, the Board
found otherwise.
[(Emphasis added).]
A-5645-16T2
11
Referring to its December 22, 2016 written decision establishing the
180-month FET, the Board stated that Acoli "demonstrated a lack of
satisfactory progress in reducing future criminal behavior[,] and that therefore,
pursuant to N.J.A.C. 10A:71-3.21(d), a [FET] within the statutorily provided
guidelines [was] inappropriate[.]" Moreover, in rejecting Acoli's argument
that the 180-month FET was excessive, the Board stated:
[Acoli] continues to demonstrate no insight towards
understanding the lifestyle and behavior choices that
he was making leading up to the murder. While he
states that he no longer advocates violence, he yet
cannot provide tangible explanations as to how he has
changed his behavior choices or patterns. [Acoli] has
made only negligible progress into understanding why
he chose to be a part of a violent militant organization.
He does not appear to recognize what changes he
needs to make to ensure a crime[-]free lifestyle.
Further, he seems conflicted in his thinking and is
unable to fully reconcile his behaviors and actions
involved in the time leading up to the murder, and the
murder itself. He repeatedly states that he takes
ownership and responsibility for the murder of the
trooper, but there are significant contradictions to
those statements in his further testimony before the
Board. He presents as being emotionless and lacking
in empathy and does not appear to realize the severity
of his violent actions. The Board finds that more
work needs to be done on [Acoli's] part, in order for
him to undergo a meaningful introspection into the
internal and external factors that impelled his life
choices.
[(Emphasis added).]
A-5645-16T2
12
Moreover, in its six-page December 22, 2016 notice of decision, the Board
stated:
[Y]ou have never before speculated as to who you
believed shot and killed the trooper, instead
maintaining that you were in an unconscious state
when the act occurred. At the [remand] hearing, you
chose to deviate from your past statements and
speculated that the trooper was killed by friendly fire.
Although the ballistic evidence reveals that could not
be the case, as the trooper was shot with his own
weapon, it is disturbing that you would make such
conjecture, especially considering your assertions that
you take responsibility for the crime.
[(Emphasis added).]
Consideration of Acoli's suitability for parole release—albeit on a different
record—returns to us on this appeal in the aftermath of the Board's final
decision.
II.
On this appeal, Acoli raises the following points:
[POINT I]
THE RECORD DOES NOT SHOW BY A
PREPONDERANCE OF THE CREDIBLE
EVIDENCE THAT [ACOLI] HAS A
"SUBSTANTIAL LIKELIHOOD" OF COMMITTING
FUTURE CRIME IF RELEASED.
A. IN NEW JERSEY[,] PAROLE IS PRESUMED
UPON REACHING THE ELIGIBILITY DATE AND
THE BURDEN IS ON THE STATE TO PROVE
[ACOLI] IS A RECIDIVIST.
A-5645-16T2
13
B. THE RECORD DOES NOT SUPPORT A
SHOWING THAT [ACOLI] IS "SUBSTANTIALLY
LIKELY" TO BE A RECIDIVIST.
1. THE BOARD IMPROPERLY RELIED
UPON REMOTE OFFENSES AS A
BASIS FOR DENIAL OF PAROLE.
2. THE BOARD'S FOCUS ON
[ACOLI'S] ALLEGED
UNWILLINGNESS TO ADMIT THE
PREMEDITATED NATURE OF THE
OFFENSE DOES NOT ESTABLISH A
SUBSTANTIAL LIKELIHOOD OF
RECIDIVISM.
3. THE RECORD DOES NOT SUPPORT
THE BOARD'S CONCLUSION THAT
[ACOLI] HAS NOT OPENLY
ACKNOWLEDGED AND ADMITTED
[TO] HIS PAST ASSOCIATIONS WITH
A VIOLENT POLITICAL MOVEMENT.
4. THE RECORD DOES NOT SUPPORT
THE STATE'S NEW PSYCHOLOGIST'S
CONCLUSION THAT [ACOLI] HAS
FAILED TO MAKE SUFFICIENT
GAINS FROM COUNSELING AND
THERAPY.
5. THE BOARD'S BASIS FOR
DENYING PAROLE IS SPECULATIVE
AND DOES NOT RISE TO THE LEVEL
OF PROOF THAT ACOLI IS
"SUBSTANTIALLY[] LIKELY["] TO
COMMIT FUTURE CRIME.
A-5645-16T2
14
[POINT II]
[ACOLI'S] RECORD WHILE INCARCERATED
FOR NEARLY [FORTY] YEARS MITIGATES
AGAINST THE FINDING THAT HE IS
"SUBSTANTIALLY LIKELY" TO COMMIT
FURTHER CRIMES.
Our narrow standard of review is critical to adjudicating Acoli's
arguments on appeal. Of course, parole determinations are subject to j udicial
review. When reviewing the Parole Board's denial of parole, we concentrate
on three inquiries:
(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. (Trantino IV), 154
N.J. 19, 24 (1998).]
We will reverse an administrative agency's decision "only if it is arbitrary,
capricious, or unreasonable or [if] it is not supported by substantial credible
evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J.
571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562
(1963)).
A-5645-16T2
15
We undertake that analysis understanding the uniqueness of the Parole
Board. See Acoli II, 224 N.J. at 222-23 (explaining the specialized nature of
the Parole Board). The Legislature purposefully established the Parole Board
that collectively embodies unique and particular characteristics. Under
N.J.S.A. 30:4-123.47(a), the Board consists of a chairperson, fourteen
associate members, and three alternate board members. Acoli II, 224 N.J. at
222. The Governor appoints these individuals with the advice and consent of
the Senate, and selects them based on their qualifications. Ibid. (citing
N.J.S.A. 30:4-123.47(a)). Indeed, the statute requires that they be "qualified
persons with training or experience in law, sociology, criminal justice, juvenile
justice or related branches of the social sciences." N.J.S.A. 30:4-123.47(a).
We expressly draw attention to the qualification-based appointment of
the Board members especially because here, the Board utilized its expertise
and conducted a full in-person hearing, listened to Acoli's responses during the
lengthy hearing, and observed Acoli interact with the Board. The Board
members' individual, diverse, and combined expertise was important, as they
undertook their weighty responsibility of deciding whether Acoli satisfied the
criteria for parole release. The Parole Board is the only agency entrusted with
the "specialized knowledge to administer [the] regulatory scheme." Acoli II,
224 N.J. at 222.
A-5645-16T2
16
Based on the diverse background of its members, the Parole Board
makes "highly predictive and individualized discretionary appraisals." Ibid.
(quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). The
appraisals are inherently imprecise because they are "discretionary
assessment[s] of a multiplicity of imponderables, entailing primarily what a
man is and what he may become rather than simply what he has done." Ibid.(alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 10 (1979)). "Stripped to its essentials, a parole board's
decision concerns a prediction as to an inmate's future behavior, a
prognostication necessarily fraught with subjectivity." Ibid. (quoting Trantino
v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 201 (2001)) (Baime,
J.A.D., dissenting).
Given the subjective nature of the Board's prediction of an inmate's
future behavior, and the highly specialized composition of the Board itself, we
are not permitted to substitute our judgment for that of the Board's. Indeed, in
the Court's remand, it stated:
By virtue of our remand, we ensure that subsequent
judicial review, if critical of the substance of that
ultimate determination by the Parole Board under the
applicable standard of review, does not impermissibly
result in a judicial substitution of a decision reposed
by the Legislature with the Parole Board. The
Appellate Division here declined to remand to the
A-5645-16T2
17
Parole Board for a full hearing, as was requested on
reconsideration by the Parole Board. The panel,
essentially, saw no point to that step, having itself
evaluated Acoli's bases for asserting that he is ready
for release and determining that there has been no
convincing reason presented to date to require his
further incarceration. That remedy basically
substituted the appellate panel's judgment for that of
the agency charged with the expertise to make such
highly predictive, individualistic determinations—the
full Parole Board.
[Acoli II, 224 N.J. at 230-31.]
We note that Acoli is serving a sentence imposed under Title 2A, the
predecessor to the New Jersey Code of Criminal Justice, now codified under
Title 2C. The Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.79, governs
Acoli's parole fitness, and provides for parole of an inmate upon eligibility
unless a preponderance of the evidence demonstrates "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 (amended 1997). The
Board utilized this correct standard during the remand proceedings.
Here, the Board also complied with all other applicable law, including
N.J.A.C. 10A:71-3.11. The regulation, entitled "Factors considered at parole
hearings; adult inmates," states:
(a) Parole decisions shall be based on the aggregate of
all pertinent factors, including material supplied by
the inmate and reports and material[,] which may be
A-5645-16T2
18
submitted by any persons or agencies which have
knowledge of the inmate.
(b) The hearing officer, Board panel or Board shall
consider the following factors and, in addition, may
consider any other factors deemed relevant:
1. Commission of an offense while
incarcerated.
2. Commission of serious disciplinary
infractions.
3. Nature and pattern of previous
convictions.
4. Adjustment to previous probation,
parole and incarceration.
5. Facts and circumstances of the offense.
6. Aggravating and mitigating factors
surrounding the offense.
7. Pattern of less serious disciplinary
infractions.
8. Participation in institutional programs
which could have led to the improvement
of problems diagnosed at admission or
during incarceration. This includes, but is
not limited to, participation in substance
abuse programs, academic or vocational
education programs, work assignments
that provide on-the-job training and
individual or group counseling.
9. Statements by institutional staff, with
supporting documentation, that the inmate
is likely to commit a crime if released;
A-5645-16T2
19
that the inmate has failed to cooperate in
his or her own rehabilitation; or that there
is a reasonable expectation that the inmate
will violate conditions of parole.
10. Documented pattern or relationships
with institutional staff or inmates.
11. Documented changes in attitude
toward self or others.
12. Documentation reflecting personal
goals, personal strengths or motivation for
law-abiding behavior.
13. Mental and emotional health.
14. Parole plans and the investigation
thereof.
15. Status of family or marital
relationships at the time of eligibility.
16. Availability of community resources
or support services for inmates who have
a demonstrated need for same.
17. Statements by the inmate reflecting on
the likelihood that he or she will commit
another crime; the failure to cooperate in
his or her own rehabilitation; or the
reasonable expectation that he or she will
violate conditions of parole.
18. History of employment, education and
military service.
19. Family and marital history.
A-5645-16T2
20
20. Statement by the court reflecting the
reasons for the sentence imposed.
21. Statements or evidence presented by
the appropriate prosecutor's office, the
Office of the Attorney General, or any
other criminal justice agency.
22. Statement or testimony of any victim
or the nearest relative(s) of a
murder/manslaughter victim.
23. The results of the objective risk
assessment instrument.
[N.J.S.A. 10A:71-3.11 (emphasis added).]
"Common sense dictates that [the Board's] prediction as to future conduct . . .
be grounded on due consideration of the aggregate of all of the factors which
may have any pertinence." Beckworth, 62 N.J. at 360.
III.
In denying parole, the Board heavily relied on Acoli's insufficient
problem resolution. After completing its in-person interview of Acoli, the
Board concluded that he lacked insight into his criminal behavior, denied key
aspects of his crimes, and minimized his criminal conduct and anti-social
behavior. The Board found Acoli did not answer questions at the hearing
spontaneously, paused "before answering each question," and was "often
hesitant to provid[e] details to even the simplest of questions." The Board
A-5645-16T2
21
determined that his responses were "superficial in nature and appeared
rehearsed in their structure."
A.
As to his continued denial of key aspects of his crimes, and his
minimizing of his criminal conduct and anti-social behavior, we emphasize the
difference between Acoli's present assertions and his previous statements in
past hearings. Previously we addressed whether Acoli's "forty-year-old
recollection of the events [was] likely to change." We stated:
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[.]
....
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.
....
A-5645-16T2
22
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.
[Acoli I, slip op. at 8-9 (emphasis added).]
In our unpublished opinion, we acknowledged the difficulty of
considering parole of an inmate who admitted his role in murders, but also
claimed he was unable to remember details of the crimes:
[I]n Trantino IV, . . . 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, . . .
166 N.J. at 193-94.
[Acoli I, slip op. at 9 (alteration in original) (emphasis
added).]
The Board members questioned Acoli about Trantino at the full Board
in-person hearing. Acoli stated, "[Trantino is] a very well-known case . . . I
know a little about it now . . . because I read it and [it is] a famous case." At
the hearing Acoli asserted that he "blacked out" from a grazed bullet, which
A-5645-16T2
23
purportedly rendered him temporarily unconscious and therefore unable to
know who killed the trooper. A Board member stated that Acoli's
assertion⸻that he could not remember since he "blacked out"⸺was
remarkably similar to Trantino's inability to remember the details of the
underlying crime.
The Board had difficulty believing Acoli "blacked out" and was rendered
unconscious because of a grazed bullet. The Board also found it "disturbing"
that Acoli "deviate[d] from [his] past statements and speculated the trooper
was killed by friendly fire." The Board noted Acoli previously asserted he
"blacked out" before the trooper was shot, which is inconsistent with his
statement at the hearing that the trooper was probably killed while Acoli
struggled with him. In other words, Acoli—unlike in Trantino—did not have a
consistent "absence of memory."
Q. [Trooper Foerster] began to pat you down?
A. Right.
Q. Okay. And what . . . did he find?
A. He found the [ammunition] clip in my belt pocket,
and the [loaded] 380 [semiautomatic handgun] in my
right pocket.
....
Q. What happen[ed] next?
A-5645-16T2
24
A. [H]e seemed to get mad, and I think he swung and
hit me with [a] roundhouse right upside the head on
my . . . temple.
....
Q. So he hit you with the gun[?]
A. Right . . . with his gun.
....
Q. [Y]ou heard shots fired, correct?
A. Right, um-hum.
....
Q. [W]here did the first gunshots come from, do you
know?
A. No, I don't know.
....
Q. [Y]ou knew it was not from Trooper Foerster[?]
A. Right, um-hum.
Q. Okay. So then what did you do in response to . . .
the shots being fired?
A. I immediately grabbed [Trooper Foerster's] gun
that he was whipping me with by the barrel, and
pushed it to the side.[4] And just as I pushed [it] to the
side, [Trooper Foerster] fired . . . in[to] my [right]
hand.
4
Trooper Foerster died from two bullets that came from his own gun.
A-5645-16T2
25
....
Q. And where was your weapon at the time?
A. [Trooper Foerster] had it in his left hand.
....
Q. [Y]ou thought you were protecting yourself?
A. [Y]eah, in other words I figured . . . I didn't want
him to shoot me.
Q. How many times did he hit you with his weapon?
A. [T]wo or three[.]
....
Q. [H]e gave you a roundhouse, you said before.
A. Right, uh-huh.
Q. Are you saying he followed that up with two or
three more blows?
A. Uh, yeah[.]
....
Q. Did you hear [the gunshots] stop[?]
A. Yeah. . . . [Trooper Harper] was aiming a gun at
me, and then a – puff of smoke, just seemed as [if] it
came out – out of the barrel, and I blacked out.
At the hearing, Acoli stated that he regained consciousness after Trooper
Foerster was shot, then he returned to his car and helped his two passengers
A-5645-16T2
26
into it, and then drove three-to-five miles away. The Board questioned Acoli
about these details:
Q. [W]hat did you do next?
A. [I could not] see because the blood was running all
in my eyes[.]
Q. Because blood was running into your eyes –
A. Right.
Q. – from the wound on your –
A. Right, on my –
Q. – person?
A. Yeah, on my head.
Q. Where were you wounded?
A. Uh, where the bullet grazed my head[.]
....
Q. But I'm looking at the pictures here when you were
taken into custody, and there are no marks on your
face . . . . [W]hy don't [you] think you had marks on
your face if somebody pistol-whipped you?
A. Because, uh – okay, the first time he hit me, he hit
me with the flat of the gun . . . up the side of [my]
temple. And then – and the next ones, I kind of – kind
of blocked it . . . . And by then, uh, a little shortly
after that, the gunfire broke out on the other side of
the car[.]
A-5645-16T2
27
Q. But you also said [Trooper Foerster] shot you [in
your hand].
A. Yeah, he did[.]
....
Q. [Trooper] Foerster's gun was a six-shot Colt
revolver . . . and only had two spent rounds in the
cartridge, and both of those bullets were . . . taken out
[of] his head . . . . There was no third shot, sir.
A. Then, uh – I don't know, you know.
....
Q. [Y]ou're claiming that . . . Trooper Harper shot[] at
you?
A. Yes[.]
Q. Okay.
A. [Trooper] Harper hit me in the head with the
gunshot.
....
Q. [But] [t]here's no reference to [your head wound]
in the trial record. Why is that?
....
A. [A]t the time I went to trial[,] . . . [my lawyer] was
useless.
....
Q. "[Trooper Foerster] had head bore abrasions on the
left cheek, lacerations at the top of the forehead, the
A-5645-16T2
28
mid forehead, and the left side of the head . . . . He
had bruises and abrasions on both hands." Upon your
arrest, "[t]he only injury found was a cut on the
webbing between [your] right thumb and forefinger.
Otherwise, [you were] unmarked and uninjured."
A. All I know is [Trooper Foerster] assailed me.
....
Q. Well, then how did he have so many bruises and
bumps, and you only [had] one?
A. I had more, they weren't – they didn't record those.
Q. You think they're lying [about your injuries]?
....
A. They're lying about it.
At a later point during the full hearing, Acoli explained to the Board for the
first time that Trooper Foerster was killed during Acoli's struggle with him—
which necessarily means that he was not unconscious when the trooper was
shot.
Q. Who do you think killed Trooper Foerster?
....
A. I think he was probably shot by Trooper Harper.
....
Q. You really think that?
A. Yeah, um-hum.
A-5645-16T2
29
Q. While you were struggling with him?
A. Um-hum.
[(Emphasis added).]
Acoli provided inconsistent responses. He alleged that "during the
struggle with Foerster he was grazed by a bullet that rendered him temporarily
unconscious[,] [and] when he regained consciousness[,] Foerster was dead[.]"
Acoli I, slip op. at 8. But at the full hearing, he said that Trooper Harper shot
Trooper Foerster while Acoli was struggling with Trooper Foerster.
The Board therefore determined that Acoli appeared to "emotionally
block[] any association to the murder by deflecting any acceptance of personal
liability or responsibility." At the hearing, instead of maintaining that he was
unconscious when the killing occurred, and therefore he did not know who
killed the trooper, Acoli explained that the trooper was shot during the
struggle. As to Acoli's explanation for how Trooper Foerster was killed, the
Board stated:
Although the ballistic evidence reveals that could not
be the case, as the trooper was shot with his own
weapon, it is disturbing that you would make such
conjecture, especially considering your assertions that
you take responsibility for the crime. Based upon the
fact that you present as not having conducted a
complete critical analysis of yourself and the internal
and external factors that control your behaviors, the
Board finds that more work in this area must be
completed.
A-5645-16T2
30
B.
The Board was troubled by Acoli's responses and mannerisms, his
refusal to accept responsibility for Trooper Foerster's murder, and his inability
to elaborate on his behavioral growth. The Board found that Acoli's
"presentation" at the hearing was insincere, as his "answers were not
spontaneous and [he] paused before answering each question[.]" As to his
rehearsed responses, the Board questioned him about his efforts to use his
counseling to become more convincing. The following colloquy occurred:
Q. [Y]ou expressed . . . that you wanted to work on
counseling, and it says [in the counseling report] that
"[y]ou came up with the idea that you're not
convincing enough during your parole hearings, and
wanted to know, through counseling, how to be more
convincing in the parole hearings."
A. Um –
....
Q. [W]hat were you trying to be convincing about?
A. I don't know[.]
After assessing his manner during the hearing, the Board found that Acoli's
"presentation" was "shallow and emotionless."
To support its conclusion that Acoli lacked insight into his criminal
behavior, the Board pointed out that Acoli failed to take responsibility for
A-5645-16T2
31
shooting Trooper Foerster⸻especially since he apparently was not
unconscious during the shooting of Foerster. Rather, Acoli took responsibility
for struggling with the trooper, which he then maintained led to Trooper
Harper killing Trooper Foerster. Nevertheless, the Board found that the
ballistics evidence showed otherwise. Importantly, the Board questioned how
Acoli could say⸻if he "blacked out" before the killing⸻that he believed
Trooper Harper accidentally shot Trooper Foerster.
Q. [Y]ou're not responsible for the death, are you?
A. Responsible for the death? Yeah, I'm responsible
for the death. Part of it because, uh, uh, I guess I – if I
hadn't struggled with him, he could have likely went
and helped his partner . . . and he might have lived.
But I don't really see how he could've went and helped
him until he took care of me, one way or the other.
And I think the quickest way to take care of me
would've been to have shot me, and get me out of the
way, and go help his partner. But by me struggling
with him, it did, uh, possibly keep him from living.
And I'm probably, you know, the cause of his death.
....
Q. I don't understand how a man can do [forty-three]
years [in prison] and still act like he didn't [shoot the
trooper].
A. I took responsibility for it.
Q. How can you take responsibility, sir, for
something you say you didn't do?
A-5645-16T2
32
A. I – uh, I explained what I said – that I did, that I
struggled with him, and prevent[ed] him from going to
the aid of his –
Q. Sir, you didn't get life for a struggle. You got life
for the murder, for putting the bullets in his head,
that's what you got life for.
A. I didn't put the bullets in his head.
Q. But that's what you got life for.
A. Um, that's what I took responsibility for then.
These concerns, in part, led the Board to conclude Acoli lacked sufficient
problem resolution, "specifically, that he lacked insight into his criminal
behavior."
On remand, the Board obtained a new psychological evaluation pursuant
to N.J.A.C. 10A:71-3.7, which states "[a]t any time while an inmate is
committed to the custody of the Commissioner, the appropriate Board panel or
the Board may require, as often as it deems necessary, the inmate to undergo
an in-depth pre-parole psychological evaluation conducted by a psychologist."
The new report—a confidential report that was not part of the previous
administrative record—is unquestionably less favorable to Acoli than the 2010
evaluation. This new report, by a different psychologist, which we have fully
reviewed, played an indispensable part in the Board's final decision.
A-5645-16T2
33
Although Acoli contends that the Board did not fully consider mitigating
evidence, the record reflects otherwise. The Board reviewed his program
participation, prison history, pre-parole reports, and respective notices of
decisions and case assessments. The Board was aware of Acoli's rehabilitation
efforts when it conducted the full Board in-person hearing. It is undisputed
that Acoli participated in programs during incarceration. As the Board pointed
out in its final decision:
[T]he Board reviewed [Acoli's] entire record in
rendering its decision. His age and personal and
medical histories; his criminal history; his record of
rehabilitative program participation (including each of
those programs referenced in your appeal); his current
custody status and institutional work history; and his
infraction-free status (since his last Board panel
hearing); are all matters of record, were noted in the
pre-parole report, the parole case file, and/or the Case
Assessment at the time of his Initial Parole Hearing,
and were considered by the Board. Based on the
information on record, the Board appropriately noted
as mitigation on the Notice of Decision: minimal
offense record; all opportunities on community
supervision completed without violations; infraction
free since last panel; participation in programs specific
to behavior; and participation in institutional
programs.
After fully questioning Acoli and considering the entire record—especially the
new psychological evaluation—the Board exercised its expertise and
concluded that the aggravating factors, specifically his insufficient problem
resolution, outweighed the mitigating factors.
A-5645-16T2
34
After we noted that "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[,]" Acoli I, slip op. at 8, we stated—based on
the administrative paper record⸻that "Acoli consistently espoused the same
sequence of events since his arrest[.]" Ibid. But that is no longer the case.
Instead of consistently saying that "a bullet . . . rendered [Acoli] temporarily
unconscious[,] . . . and when he regained consciousness [Trooper] Foerster was
dead," ibid., Acoli stated that Trooper Harper accidentally shot Trooper
Foerster while Acoli struggled with Trooper Foerster.5
Finally, the Board concluded that Acoli could not articulate how he
changed his anti-social patterns. Considering Acoli's previous participation in
a "radical organization," the Board thought it was important to assess "the
manner in which [Acoli would] conduct [himself] and address and process
confrontational situations or situations involving societal conflict." The Board
stressed that "upon release, [Acoli] may be faced with similarly charged
5
In our prior opinion, we stated that "[t]here were no eyewitnesses to
[Trooper] Foerster's shooting[,] and [that] the Middlesex County Prosecutor[,]
in a letter to the Board opposing Acoli's parole before the hearing, pointed out
that [Acoli's passenger] might have fired [Trooper] Foerster's gun." Acoli I,
slip op. at 8 n.9. But at the full hearing, the Board questioned Acoli about
whether one of his passenger's shot [Trooper] Foerster, and Acoli remained
steadfast that, in a "[f]riendly fire shot," Trooper Harper "probably" shot
Trooper Foerster while Acoli struggled with Trooper Foerster because Trooper
Harper "was doing . . . all the shooting."
A-5645-16T2
35
situations regarding social injustice and community activism." Therefore, the
Board felt it was necessary to understand how Acoli's views on violence and
activism changed throughout his confinement. The Board found that he
continued to believe his actions were justified, he had no understanding of why
violence was necessary to affect social change, and that he failed to show how
his criminal thinking pattern changed. The Board questioned him on these
topics. For example, the Board addressed a Criminal Thinking Program Acoli
participated in.
Q. [Do you remember] taking the Criminal Thinking
Group [class]?
A. . . . I do remember taking Criminal Thinking.
....
A. I can't remember . . . many details [of] it.
Q. Details about what? I'm just asking about the
Criminal Thinking Program.
A. That's what I mean, that – uh, all that I know is
that I knew – I know that – that I took it.
....
Q. [W]hat [did] you learn[] in it?
A. . . . I'm not absolutely sure, but I think it probably
had to do with, um, criminal mentality[.]
Q. . . . I want to know how it helped you, and what it
changed in your way of thinking, and making
A-5645-16T2
36
decisions, and how you look at the issues that you've
been involved in[.]
A. Okay. All I . . . can really know is I don't [have]
intentions of being involved in any criminal activity.
Q. . . . I'm more interested in what you've learned
[from the program] [b]ecause you say that you've
completed the program [but the record] says here that
you didn't[.]
....
Q. [Y]ou can't tell me what you've learned, but can
you explain to me how your criminal thinking has
changed?
A. Uh –
....
Q. Explain to us, please, what have you learned from
that class?
A. Um, offhand, I'd have to say that you don't break
the law. It has something to do with not breaking the
law.
Acoli continued that one should "stay away from the violence" and avoid
"getting something for nothing."
IV.
Our dissenting colleague concludes that our opinion "inflicts a blow to
the integrity of our justice system[.]" Post at ___ (slip op. at 1). The premise
of his conclusion is that the remand proceedings amounted to "nothing more
A-5645-16T2
37
than a 'show hearing,' [which] only resulte[d] in the denial of parole again 'for
no rational or just purpose.'" Ibid. Our colleague asserts that we "abandon[ed]
our guiding principles" and have "contravene[d] the public policy behind the
Parole Act[.]" Id. at ___ (slip op. at 1-2). To the contrary, we have
systematically adhered to decades of precedent, applied our long-standing
standard of review, and resisted the temptation to substitute our judgment for
that of the "agency charged with the expertise to make such highly predictive,
individualistic determinations—the full Parole Board." Acoli II, 224 N.J. 230-
31. We therefore, respectfully, strongly disagree with his characterization of
our decision—or for that matter—his implication that the Board simply went
through the motions on remand.
As the new record reflects, our colleague erroneously suggests the Board
denied parole solely because Acoli "refus[ed] to accept the facts as found by
the jury."6 Post at ___ (slip op. at 13). He is concerned that "other prisoners
6
Our colleague relies on Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28,
42 (App. Div. 2003) for the proposition that "[t]he Parole Board cannot insist
that [an inmate]'s insight into [his] criminal behavior is impaired by reason of
the fact that [he] will not admit that [he] was the actual shooter." Post at ___
(slip op. at 12). The Board here did not find Acoli's "criminal behavior was
impaired" as a result of his unwillingness to admit he shot the trooper.
Instead, the Board relied on the new psychological report—as well as the
entire new record—and concluded that Acoli suffered from insufficient
problem resolution (despite his rehabilitation efforts). And importantly,
Kosmin is factually distinguishable. In Kosmin, the defendant pled guilty, and
(continued)
A-5645-16T2
38
who . . . look to the Parole Board's actions [will] see no reason to hope that
they will be paroled when eligible[.]" Id. at ___ (slip op. at 15-16). Our
colleague has determined that because the Board purportedly ignored Acoli's
"development and rehabilitation [efforts] since he committed his crime," and
has instead denied parole based "upon the crime itself," there may be no
incentive for "model prisoners[] like Acoli" to "maintain order." Id. at ___
(slip op. at 6). Our colleague believes this may lead to a "possibility" of
creating a risk of resurgence in prison unrest. Id. at ___ (slip op. at 6-7). This
is not a situation where the Board found Acoli was a "model prisoner[],"
ignored his rehabilitation efforts, and then denied him parole "for no rational
or just purpose." Id. at ___ (slip op. at 1, 6).
We disagree with our colleague's assertion that "the record . . . has
remained virtually unchanged since [this court] visited this matter in 2014."
Id. at ___ (slip op. at 1). One obvious difference is the new psychologist
report, which added different critical insight for the Board's consideration.
(continued)
the Board considered a psychological report that explained the defendant
displayed "evidence of anxiety, sadness, remorse, guilt and pain"; that her
"[s]peech was fluid, articulate and relevant"; and that "[s]he was primarily
fully engaged in direct eye contact with the examiner." Kosmin, 363 N.J.
Super. at 35.
A-5645-16T2
39
Indeed, our colleague concedes that the new report—obtained properly by the
Board under N.J.A.C. 10A:71-3.7—"formulated a much less favorable opinion
about Acoli than the [psychological] report the Board considered in 2011." Id.
at ___ (slip op. at 10). The dissent points out that the new report does not use
the words "friendly fire." Id. at ___ (slip op. at 11 n.6). Rather than focusing
on what the report did not say, the Board concentrated on what the
psychologist actually said.
Let us be clear. Our colleague states that the new psychologist did not
mention in her report that "Acoli said anything about 'friendly fire.'" Ibid.
Instead, she reported he could "not even fathom who could have possibly
pulled the trigger." This is diametrically opposed to his unequivocal statement
to the full Board⸻given just a couple of months after the psychological
interview—that Trooper Harper "probably shot" Trooper Foerster while (not
after) Acoli struggled with Trooper Foerster. Acoli did not say to the Board
that Trooper Harper shot Foerster while Acoli was unconscious; he said that
Harper "probably" shot Foerster during the struggle because Harper "was
doing . . . all the shooting." Questioning him about the shooting is not
surprising, especially because Acoli himself placed his credibility in play when
he said he blacked out.
A-5645-16T2
40
There was nothing perfunctory about the new report. To the contrary,
the psychologist rendered her twelve-page, single-spaced report after
interviewing Acoli on two days, reviewing approximately twenty-one
documents (including the previous psychology report referred to by our
colleague), and performing a psychometric evaluation. The Board's reliance
on her clinical opinions and recommendations undermines our colleague's
determination that the Board somehow denied parole "for no rational or just
purpose." Id. at ___ (slip op. at 1).
Another obvious important difference is that during the last hearing
before it, the Board conducted a lengthy in-person hearing at which all the
members questioned Acoli about a variety of subjects. We must not lose sight
of what that means. The Board based its findings—that his responses were
insincere, rehearsed, shallow, and emotionless—on each Board member's first-
hand opportunity at the hearing to observe and listen to his testimony, things
that no reviewing court (without being there) can perceive by simply reading a
transcript. The Board assessed Acoli's demeanor and mannerisms and
concluded he gave contradictory and implausible responses, especially about
blacking out.
This record—not the earlier one—supports the difficulty the Board had
believing Acoli blacked out. That is so because the Board learned for the first
A-5645-16T2
41
time that Acoli remembered almost everything else. For example, he
remembered being pulled over; exiting his car with a loaded semiautomatic
weapon; and walking towards Trooper Foerster. He recalled Trooper Foerster
struck him with a roundhouse "upside my head," and that the Trooper
"whipp[ed]" him two or three times with the "barrel" of Trooper Foerster's gun
(although the photographs showed no injuries to his head or face) . He
identified the hand in which Trooper Foerster was holding a gun. He
explained he heard gunshots, saw gun smoke and Trooper Harper's face, and
that Trooper Harper fired at him, grazing his head with a bullet, which Acoli
said rendered him unconscious. He testified that Trooper Harper "probably
shot" Foerster in friendly fire, and specifically denied that his two passengers
could have done so. Acoli testified that he regained consciousness after
Trooper Foerster died, returned to his car, helped his passengers into his car,
and drove three-to-five miles away from the scene of the murder, where the
police captured him hiding in the woods. His entire testimony supported the
Board's finding that he "emotionally blocked any association of the murder,"
which directly supported its conclusion that he minimized his criminal conduct
and anti-social behavior.
Finally, the Board focused on Acoli's rehabilitation efforts and
concentrated on his continued insufficient problem resolution. Our colleague
A-5645-16T2
42
points out that Acoli participated in "at least 100 different programs for self -
improvement as well as vocational training[.]" Id. at ___ (slip op. at 11 n.5).
And he is right. But when the Board asked him open-ended questions,
specifically what he had learned from his Criminal Thinking Group class,
Acoli said "I'm not absolutely sure . . . [i]t has something to do with not
breaking the law." Thus, contrary to our colleague's belief that the Board
denied parole only because Acoli did not admit to the shooting, the Board
relied on all of his testimony—and its review of the entire case file—and
concluded Acoli failed to demonstrate the necessary insight into his
incomplete problem resolution progress, and denied parole "at the present
time."
Emphasizing that we are not to substitute our judgment for that of the
full Parole Board, we will not do so here. Acoli II, 224 N.J. at 230-31. It is
clear from the record before us that the Board did not act arbitrarily or
capriciously in denying Acoli's parole application. Indeed, there is ample
support in the record for the Board's determination that there is a substantial
A-5645-16T2
43
likelihood that Acoli will commit another crime under the laws of this State if
the Board grants him parole.7 See N.J.S.A. 30:4-123.53(a).
Affirmed.
7
We note the Board's December 22, 2016 FET decision states that Acoli's
projected parole eligibility date was in March 2019; and he is entitled to
annual parole reviews. The Board stated:
It is strongly encouraged that you participate in these
reviews. If the Board panel determines at your annual
review that you have made progress towards your
rehabilitation, the Board panel may authorize a
reduction in the [FET]. Also, the Board panel has the
option of referring your case for a parole release
hearing.
A-5645-16T2
44
ROTHSTADT, J.A.D. dissenting.
As Justice Albin observed in his dissent from the Court's opinion in
Acoli v. New Jersey State Parole Board (Acoli II), 224 N.J. 213 (2016), "this
case is about more than one individual. It is about the integrity of our justice
system." Id. at 241 (Albin, J., dissenting). The majority's opinion today,
affirming the Parole Board's latest denial of parole to Acoli, inflicts a blow to
the integrity of our justice system by fulfilling Justice Albin's prediction, in the
same dissent, that the Supreme Court's remand to the Parole Board in Acoli II
would amount to nothing more than a "show hearing," and only result in the
denial of parole again "for no rational or just purpose." Id. at 240.
Although the majority affirms the Parole Board's decision under its view
that new information justified the Parole Board's actions, its perception is
belied by the record that has remained virtually unchanged since we last
visited this matter in 2014. See Acoli v. N.J. State Parole Bd. (Acoli I), No.
A-3575-10 (App. Div. Sept. 29, 2014). Moreover, despite the fact that in
1974, Acoli's sentence could not legally have been life without parole, the
impact of the majority's opinion affirming the Parole Board's actions, which
were based upon the "strong winds of public opinion," Acoli II, 224 N.J. at
241 (Albin, J., dissenting), imposes that very sentence on Acoli. In doing so,
the majority abandons our guiding principles, that "the most despised inmate is
entitled to the protection and enforcement of the law," id. at 234, "and that the
law must apply 'equally to all persons, the bad as well as the good.'" Id. at 233
(quoting Trantino v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 197-98
(2001)). Also, by affirming the Parole Board's action, the majority
contravenes the public policy behind the Parole Act of 1979, N.J.S.A. 30:4-
123.45 to -123.88 (Parole Act), which supports the maintenance of a fair
system of parole, by jeopardizing the public's safety. For these reasons, I
respectfully dissent.
I.
At the outset, as we acknowledged in Acoli I, I remain "appalled by
Acoli's senseless crimes, which left a member of the State Police, [State
Trooper Werner Foerster,] dead and another, [State Trooper James Harper,]
injured, as well as one of Acoli's associates dead and the other injured."1 Acoli
I, slip op. at 27. Surely, it was "the most heinous crime . . . which, if
committed today, would result in a life sentence without parole eligibility. "
Acoli II, 224 N.J. at 234 (Albin, J., dissenting). Moreover, both troopers'
1
As we observed in our earlier opinion, "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 I, slip op. at 3. We also observed that there were no
eyewitnesses to the shooting and noted a statement filed by the county
prosecutor in response to Acoli being considered for parole, which speculated
that a third party "might have fired Foerster's gun." Id. at 23 n.9.
A-5645-16T2
2
families' and Trooper Harper's continuing trauma, pain, and suffering cannot
be overstated.
It is beyond cavil that Acoli's receipt of the maximum lawful sentence
available at the time was, to say the least, appropriate under the circumstances.
However, it is equally beyond any dispute that parole determinations must be
based upon "what a man is and what he may become rather than simply what
he has done." Id. at 222 (majority opinion) (quoting Greenholtz v. Inmates of
Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)). That was not the case
here.
II.
An understanding of parole and its importance to the public's safety is
central to recognizing why parole determinations must be based upon an
inmate's experience and development since he committed his crime, and why
the Parole Board's actions here established a disincentive for inmates to pursue
proper conduct while incarcerated, thereby threatening the public's safety.
"Parole is a period of supervised release 'by which a prisoner is allowed
to serve the final portion of his sentence outside the gates of the institution on
certain terms and conditions, in order to prepare for his eventual return to
society.'" State v. Black, 153 N.J. 438, 447 (1998) (emphasis omitted)
(quoting State v. Oquendo, 262 N.J. Super. 317, 324 (App. Div.), rev'd on
A-5645-16T2
3
other grounds, 133 N.J. 416 (1993)). Our current procedure for determining
whether an inmate should be paroled was established by the Legislature's 1979
enactment of the Parole Act that changed the entire process.
The purpose for the new legislation was described in accompanying
statements issued by the Assembly, Senate, and Governor in 1979. In those
statements, the need for the reform was based upon "uncertainties about parole
and perceptions of injustice in the parole process [that had been] key causes"
of riots in prisons in New Jersey and elsewhere. Assembly Judiciary, Law,
Public Safety and Defense Committee, Statement to Assembly Bill No. 3093,
at 1 (Dec. 3, 1979). The Legislature envisioned that the reforms would
"contribute to the effectiveness of parole as a tool for reducing recidivism, and
[would] contribute to the maintenance of institutional order." Ibid. (emphasis
added).
Prior to the 1979 reforms, an inmate was obligated to "prove his fitness
to be released in order to be granted parole." Id. at 2; see also In re Parole
Application of Trantino (Trantino II), 89 N.J. 347, 355 (1982). One of the
major reforms was to shift the burden of proof as to an inmate's eligibility for
parole from the inmate to the Parole Board. The legislation required that an
inmate "would be paroled on his primary eligibility date unless the State
proves 'by a preponderance of the evidence that there is a substantial
A-5645-16T2
4
likelihood that the inmate will commit a crime if released.'" Ibid.; see also
N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983) ("The legislation shifts
the burden to the State to prove that the prisoner is a recidivist and should not
be released.").
The 1979 Parole Act therefore "create[d] a presumption of release on [an
inmate's] parole eligibility date." Kosmin v. N.J. State Parole Bd., 363 N.J.
Super. 28, 41-43 (App. Div. 2003). Moreover, it "create[d] a legitimate
expectation of release . . . absent findings that justification for deferral exists,"
and gave rise to "a federally-protected liberty interest." Trantino VI, 166 N.J.
at 197 (quoting Byrne, 93 N.J. at 207).
The reasons for why this change was important to the overhaul of the
process was summarized as follows:
First, it is felt that this shift better complements
the generally longer sentence of the code and that the
power to decide how long a convict should be
imprisoned belongs to the sentencing court rather than
the parole board. Secondly, it is argued that the shift
better reflects the practicalities of the parole process.
Since the key issue in determining fitness for parole is
the question of recidivism and since it is impossible
for a person to prove he will not do something, the
present practice is for the authorities to present
evidence showing a likelihood of future criminal
activity in order for there to be a denial of parole.
Thus, it is felt that in shifting the burden, Assembly
Bill No. 3093 merely confirms statutory law to the
practical dynamics of the parole process. The third
reason offered for the shift in burden is the hope that it
A-5645-16T2
5
will make the parole process more consistent and
predictable. The official reports on the Rahway and
Attica riots cited uncertainties about parole and
perceptions of injustice in the parole process as key
causes of the riots.
[Senate Law, Public Safety and Defense Committee,
Statement to Assembly Bill No. 3093, at 2-3 (Dec. 10,
1979) (emphasis added).]
As the Legislature recognized, predictability is vital to the parole
process. In order to maintain public safety, inmates must understand that their
protected interest in being paroled is honored by the grant of parole to
deserving prisoners. The anticipation of parole for inmates who have served
sentences with little or no incidents or infractions provides positive
reinforcement for behavioral change, and is a viable incentive for prisoners to
rehabilitate themselves while in prison and avoid engaging in criminal
behavior. The possibility of parole encourages prisoners to adhere to prison
rules and maintain good behavior in prison.
For that reason, if model prisoners, like Acoli, perceive that parole
decisions are not based upon an inmate's development and rehabilitation since
he committed his crime, but upon the crime itself, there is no incentive to
maintain order, creating a risk of a resurgence in the prison unrest that the
1979 Parole Act sought to address. The possibility of that resurgence is
A-5645-16T2
6
heightened where, as here, there is insufficient evidence that a candidate for
parole is substantially likely to commit a crime if released.
III.
Under the Parole Act, a Parole Board's decision to grant or deny parole
for crimes committed before August 1997 turns on whether there is a
"substantial likelihood" that the inmate will commit another crime if released. 2
N.J.S.A. 30:4-123.53(a) (1979); see also N.J.A.C. 10A:71-3.10(a); Acoli II,
224 N.J. at 235-36 (2016) (Albin, J., dissenting); Williams v. N.J. State Parole
Bd., 336 N.J. Super. 1, 7 (App. Div. 2000). "The [Parole] Act thus posits the
likelihood of future criminal conduct as the determinative test for parole
eligibility and effectively establishes a presumption in favor of parole."
Trantino II, 89 N.J. at 355-56. Under this test, the burden is on the Parole
Board "to prove that the prisoner is a recidivist and should not be released."
Byrne, 93 N.J. at 205.
"The [Parole] Board is the administrative agency charged with the
responsibility of deciding whether an inmate satisfies the criteria for parole
release under the Parole Act of 1979." Trantino VI, 166 N.J. at 173 (quoting
2
The standard for parole for crimes committed after 1997 is different. That
standard requires that there be proof "by a preponderance of the evidence that
the inmate has failed to cooperate in his or her own rehabilitation or that there
is a reasonable expectation that the inmate will violate conditions of parole . . .
if released on parole at that time." N.J.S.A. 30:4-123.53.
A-5645-16T2
7
In re Parole Application of Hawley, 98 N.J. 108, 112 (1984)). In determining
parole eligibility, the Parole Board is to 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;
the 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 from the inmate, the
prosecutor's office, and the victim's family; and the results of objective risk
assessment instruments. However, the Parole Board is not required to consider
each and every factor, rather it should consider those applicable to each case.
McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).
It should not place undue emphasis on any one factor, especially the crime that
the inmate committed. See Trantino VI, 166 N.J. at 189-90 (stating the Parole
Board may not rely on selective portions of the record that support its
determination of likely recidivism while overlooking or undervaluing
conflicting information).
Here, "the Parole Board's finding that [Acoli] was substantially likely to
recidivate was based not on a preponderance of the evidence in the record, but
rather on the [Parole] Board's selective and arbitrary reliance on only those
A-5645-16T2
8
portions of the record that could possibly support the [Parole] Board's
conclusion," and which related to his refusal to admit that he shot Foerster. Id.
at 189. In reaching its conclusion that there was a substantial likelihood Acoli
would commit a crime if released on parole, the Board ignored "substantial
evidence in the record, spanning many years of infraction-free incarceration
and [a] favorable psychological evaluation[], that demonstrated [Acoli]'s
likelihood of success on parole." Ibid.As recognized by the majority's opinion, the Parole Board's questioning
of eighty-two-year-old Acoli and its final decision "heavily relied," ante at __
(slip op. at 21), upon Acoli's commission of the crime and "for the first time,"
ante at __ (slip op. at 29), his speculation about how his victim died, which
differed from what his jury found more than four decades ago. 3 At the 2016
hearing, as he did when we last reviewed this matter, and for decades before
that, Acoli continued to maintain that he blacked out and did not know who
actually shot Foerster. In response to questioning at the 2016 hearing that
called for Acoli to speculate as to who he thought might have shot the Trooper,
3
As we observed in our earlier opinion, "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." Acoli I, slip op. at 3 n.2.
A-5645-16T2
9
Acoli stated it could have been "friendly fire," and he did not mention whether
he was conscious.
As the majority discusses at length, that speculation was inconsistent
with his previous assertion that he did not know who shot Foerster and
contradicts his claim that he passed out before the Trooper was shot. All of
the other factors relied upon by the Parole Board in reaching its decision to
deny parole were essentially identical to those that the Parole Board panel
relied upon when it denied Acoli parole in 2011. 4 The only new substantive
material considered by the Parole Board was a report from a psychologist who
formulated a much less favorable opinion about Acoli than the report the
Board considered in 2011, from Lois D. Goorwitz, Ph.D. 5 The new report,
4
At oral argument, the Parole Board agreed that it primarily relied upon
Acoli's refusal to admit he pulled the trigger on the gun that killed Trooper
Foerster, and that nothing else had changed about Acoli since we last reviewed
the Parole Board's 2010 denial.
5
On remand from the Supreme Court, the Parole Board did not explain why it
failed to rely on Goorwitz's report, but instead considered a new, less favorable
report from a different professional.
In his dissent, Justice Albin summarized the factors that we found in
2014, which I conclude remained unchanged in 2016, and Goorwitz's findings.
He stated the following:
The appellate panel made the following observations:
(1) Acoli has not committed a single disciplinary
infraction since 1996, and accumulated only minor
(continued)
A-5645-16T2
10
which recommended against parole, also relied upon Acoli's refusal to admit
he fired the weapon that killed Trooper Foerster. 6
(continued)
infractions since 1979; (2) his institutional progress
report indicated that he "'has displayed a positive
rapport with both staff and inmates'"; (3) Acoli
"completed at least 100 different programs for self-
improvement as well as vocational training"; (4) Acoli
was a prisoner representative for the correctional
facility's social resource organization, and as a result
of "his positive institutional record, he became a
member of the Honors Unit program"; and (5) in 2008,
prison staff reported that Acoli had "demonstrated
adequate coping skills . . . and ability to establish
positive interaction with others," and that he was
expected "to be able to transition to the community if
paroled."
The appellate panel also referenced the pre-parole
mental health evaluation conducted by . . .
Goorwitz . . . . Dr. Goorwitz noted that Acoli
"'expressed regret and remorse about his involvement
in the death of the state trooper'" and "'appeared to be
answering honestly.'" Dr. Goorwitz also found Acoli
"'to be very cooperative, self[-]reflective, thoughtful,
and non[-]defensive in his responses to the questions
posed to him.'" (alteration in original). She
concluded that "'there were "NO psychological
contraindications to granting parole."'"
[Acoli II, 224 N.J. at 238-39.]
6
Without breaching the confidentiality of the report, it bears mentioning that
it did not state that Acoli said anything about "friendly fire" when asked to
speculate about who killed Foerster.
A-5645-16T2
11
After considering the new report and other confidential records, as well
as Acoli's testimony, the Parole Board denied his application, relying upon its
members' dissatisfaction with Acoli's development over the last forty -six years
since he committed his heinous crime. The Parole Board based its decision on
his slow manner of speaking, the lack of depth to his answers, and
significantly, as the majority recognized, the Parole Board's primary concern
that Acoli still refused to admit that he shot Foerster. The Parole Board relied
on that refusal to discount Acoli's repeated expressions of remorse for his
involvement in the conduct that led to the Trooper's death and his exemplary
record as a model prisoner for at least the past twenty years.
The Parole Board's continued reliance on Acoli's refusal to admit to
firing the fatal shots was insufficient to support its conclusion that he is
substantially likely to commit a crime if released. "[T]he Parole Board cannot
insist that [an inmate]'s insight into [his] criminal behavior is impaired by
reason of the fact that [he] will not admit that [he] was the actual shooter."
Kosmin, 363 N.J. Super. at 42. Such reliance is an abuse of the Parole Board's
discretion. See Trantino VI, 166 N.J. at 177-78 (finding that "the Board's
A-5645-16T2
12
reliance on [petitioner's] inadequate recollection of the details of his crimes to
support its denial of parole constituted a clear abuse of discretion").7
I recognize the deference we afford to Parole Board determinations and
that we will "not lightly reverse a parole-denial decision by the Parole Board."
Kosmin, 363 N.J. Super. at 43. Such action in the case of a convicted
murderer of a law enforcement officer is, to say the least, "unusual." Acoli II,
224 N.J. at 232. But, we remain tasked with "ensuring that administrative
agencies not thwart the law in unpopular cases." Id. at 240 (Albin, J.,
dissenting) (citing Trantino VI, 166 N.J. at 197). "[C]ourts [cannot] permit
agencies of government to create exceptions to the rule of law, applying it for
the many but exempting the disfavored, [without] irreparably damag[ing] the
foundation of our democracy." Id. at 233 (quoting Trantino VI, 166 N.J. at
198).
Where, as here, the Parole Board denies parole because of an inmate's
refusal to accept the facts as found by the jury, its decision cannot stand.
7
Notably, at the 2016 hearing, one of the Parole Board's members expressed
his misguided view of the Court's holding in Trantino VI when he asked Acoli
"Why would we think that you haven't taken a page out of the Trantino
handbook, you know, which is basically, you know, how to -- how to kill a
police officer, and then get paroled for it later on in life by -- by saying I don't
remember?" The same member described the Court's holding again by stating
"Well, it's basically a blanket disclaimer of responsibility for anything that
happened because . . . I just can't remember it."
A-5645-16T2
13
"[E]ven the most despised inmate is entitled to the protection and enforcement
of the law." Id. at 234. For this reason, although Acoli may be one of "the
most disfavored member[s] of society," id. at 241, I continue to hew to our
earlier conclusion regarding Acoli's entitlement to parole and I would reverse
the Parole Board's denial in this case. 8 See Acoli I, slip op. at 27-28. I would
do so because our system of justice does not permit anything less.
My view is not altered by the majority's opinion. Its reliance on Acoli's
recent speculation about who may have shot Trooper Foerster fails to
recognize that Acoli's speculation is an opinion about a possibility and not a
statement of fact, and his flawed or even feigned memory loss is not sufficient
cause to deny parole. Despite his speculation, Acoli has always maintained
that he does not know who actually shot Trooper Foerster.
Acoli has completed the penal portion of his sentence. He is now over
eighty years old. He speaks slowly and forgets things. As we previously
noted in 2014, his recollection overall was "consistent, but flawed." Acoli I,
slip op. at 24. Now, years later, Acoli remains consistent in his claim that he
does not remember who in fact shot Foerster. The majority's reliance on his
8
Notably, the Supreme Court did not pass upon our reasoning in Acoli I as it
reversed our determination on procedural grounds, finding that after the Parole
Board's panel denied parole, the next step in the administrative process was a
full hearing before the entire Parole Board. See Acoli II, 224 N.J. at 232.
A-5645-16T2
14
flawed speculation as to how he supposes that friendly fire may have caused
Trooper Foerster's death is not sufficient to sustain the Parole Board's actions.
In any event, although not admitting to being the actual shooter, Acoli
has repeatedly expressed his remorse for his involvement in the crime that led
to Trooper Foerster's death, he has disavowed his involvement with the radical
group—the Black Liberation Army—and the necessity for violence, and he
acknowledged the change in his thinking through counseling, classes, and
President Obama's election. Acoli I, slip op. at 24-25.9 Also, as Acoli is now
an octogenarian, there is a substantial decrease in any likelihood that he would
commit a crime if released. See State v. Davis, 96 N.J. 611, 618 (1984)
("[A]ge, as a demographic variable, has consistently been found to be strongly
related to subsequent criminal activity.").
The majority's comprehensive explanation of the Parole Board's actions
does not alter the reality that Acoli, who is one of the longest-serving inmates
in New Jersey, if not the longest, and who has been a model prisoner for
decades, is being denied parole without any evidence that he is substantially
likely to commit a crime if released. Both Acoli and other prisoners who will
9
Progress notes in the record described Acoli's success in prison programs
and individual counseling geared toward developing positive changes in his
attitudes that were also reflected by his testimony about the need to avoid
criminal behavior, his repudiation of violence, and the positive development of
his attitude toward the police and authorities in general and on racial issues.
A-5645-16T2
15
look to the Parole Board's actions here and see no reason to hope that they will
be paroled when eligible, are being wrongfully denied the predictability and
justice that the Parole Act of 1979 was intended to secure—not only for their
benefit, but for the benefit of the public as well.
"Because of the Parole Board's unjustifiable and 'obvious overlooking or
undervaluation of crucial evidence,' [I] have no doubt that its determination,
based not on a preponderance of all evidence, but on evidence arbitrarily
selected to support a desired result, is manifestly mistaken and [should] be set
aside." Trantino VI, 166 N.J. at 192 (citation omitted).
A-5645-16T2
16