Trantino v. New Jersey State Parole Board

764 A.2d 940 TRANTINO, THOMAS AND APPELLANT-RESPONDENT CROSS- APPELLANT, BOARD, v. STATE RE NEW JERSEY PAROLE AND SPONDENT-APPELLANT CROSS-RESPONDENT. TRANTINO, THOMAS AND APPELLANT-RESPONDENT CROSS- APPELLANT, v. DEPARTMENT OF NEW JERSEY CORREC TIONS, RESPONDENT-APPELLANT AND CROSS-RESPON DENT.

Argued September January 2000 Decided 2001.

H5 General, McCoach, Deputy Attorney argued the Howard J. (John Farmer, Jr., appellants cross-respondents J. cause for Jersey, attorney; Mary Attorney C. General of New Jacobson counsel). General, Kaplen, Attorneys Nancy Assistant Lowenstein, argued respondent Roger A. the cause cross-appellant. opinion was delivered of the court

STEIN, J. Jersey appeal address contention the New In this we Board) (Parole Appellate Parole Board Board or State reversing deny parole error its decision to Division committed respondent Jersey Trantino. v. State Thomas New (2000) 624-25, Bd., N.J.Super. A.2d 761 Parole (Trantino V). appeals from this inmate on three

This Court has considered upheld we conviction murder and prior occasions. In 1965 his for sentence, imprisonment. v. death later commuted to life State his (1965), Trantino, 358, denied, 44 A.2d cert. U.S. N.J. 209 117 382 (1966), denied, 993, 573, reh’g. L.Ed.2d U.S. 86 S.Ct. 479 383 (1966). 1982, 901, L.Ed.2d 679 In we set aside the 86 S.Ct. grant parole, with a Parole Board’s decision to restitution as condition, and remanded the case to the Parole Board to “reassess sentence,” resulting in punitive aspects of Trantino’s the deny parole impose ten-year a future Board’s decision to and eligibility Application, term. In re Trantino Parole 89 N.J. (1982) (Trantino II). 446 A.2d 104 we reversed the judgment Appellate upholding Division’s the Parole Board’s denial parole ground on the that the Board’s decision was based on an evidence, supported incorrect was not standard and sufficient and remanded the matter to the Board to redetermine Trantino’s Board, eligibility Jersey Trantino v. State New Parole (1998) (Trantino IV). 19, 22-23, 154 N.J. 711A.2d 260 judgment modify part part and now affirm We Division, thereby uphold court’s unanimous Appellate deny parole. to The Parole Board’s decision reversal of the subject parole to the grant to Parole Board is ordered satisfactory completion a twelve-month pre-release condition pre- post-release halfway placement and such other house may impose. Department The of Corrections that it conditions thirty days halfway house place to Trantino within ordered Camden/Cherry Hill proximity to the facility a reasonable within area. years thirty-seven opinion reflects Trantino’s length of this attempts prior to achieve and his numerous

of incarceration had heinous crimes opinion explains that if Trantino’s parole. Our parole, eligible for 1997 he would never be been committed after eligible for prevailing law he has been that under the but conclusion that explain in detail our 1979. We also since arbitrarily capriciously, and not on Parole Board acted record, in in the whole preponderance of the evidence of a basis Parole Board’s conclude that deciding deny parole. We to robbery, relating assaul- reliance on evidence extensive wife, from 1961 to his first violations in 1963 with tive conduct prison, efforts from a New York 1963 of conditions of detainer, and other a New York attorneys in 1974 to remove murders occurring prior to the 1963 relating to events evidence provided no substan- arbitrary capricious. That evidence that Trantino was substan- support for Board’s conclusion tial parole now. if released on tially likely another crime to commit was a remote events reliance on evidence such The Board’s of substantial evidence makeweight compensate for the lack Moreover, insis- the Board’s support the Board’s conclusions. substantially undermined evidence on the relevance of such tence ordinarily agency decisions. confer on that courts deference virtually focus on exclusive that the Board’s We also conclude Ferguson to find that testimony of Dr. the 1999 Glenn likely substantially to recidivate profile made him psychological the arbitrariness of the Parole Board’s further demonstrated opinion explains, our the Board’s determination was decision. As based, requires, preponderance law on a of the evi- not as the dence, only that rather on the Board’s selective reliance on but testimony possibly support parole. that could a denial of limited completely disregarded in the The Board substantial evidence record, by including prior three recommendations of Dr. Ferguson, significantly supportive It that was of also ignored psychological the conclusions contained numerous other by including psychological expert retained evaluations — Attorney presented General —that Trantino a low risk of recidivism. The seleetiveness of the Parole Board’s review of this extensive record further undermines the deference to which its ordinarily decision would be entitled. government, explain agencies

We also like the Parole Board, apply selectively, cannot be allowed to the rule of law exempting coverage by society. from its those least favored previously expressed

We have our abhorrence of Trantino’s crimes: sergeant those whose victims were Lodi and a brutality crimes, police is not trainee, seared the memories the victims’

police unquestionably only families and friends but also in the consciousness of From the society. standpoint length, of retribution, sentence, no whatever its is perhaps prison sufficiently severe. [Trantino IV, 260], 154 N.J. at 711 A.2d 43-44, supra, Thus, today our decision is mandated not the belief that punished enough, Trantino has been but rather the rule of law support and the lack of substantial evidence in the record to Parole Board’s decision.

I Jersey enough Citizens of New old to recall the circumstances respondent’s Sergeant brutal murder of Lodi Police Peter Voto police Gary August may and Lodi trainee Tedesco be respondent eligible astonished to learn under the law for today’s laws, consideration. Under a defendant convicted

123 duty face a in the line of would police murder of a officer any possibility of imprisonment without life minimum sentence of (2). law, Legisla by our That enacted parole. N.J.S.A. 2C:11-3b society’s 1997, 1997, 60, contemporary L. reflects our c. ture be police officer should never the murderer of a belief that rehabilitation prison irrespective of the extent of his released from If that statute had been during years of incarceration. committed, Trantino homicides were effect in 1963 when those prison. eligible paroled from never would be to be also have most of our sister states Significantly, we note that laws, years, increasing past thirty sentences all within the enacted That such laws did not police murder officers.1 for those who 12.55.125(a)(1), 1975); (enacted 1 § § Alaska Stat. See Ala.Code 13A-5-40 13-1105(A)(3), § § 23; Alaska Sess. Laws ch. 79 amended 1992 Ariz.Rev.Stat. by 5-10-101(a)(3) § § 343, 2; Ark.Code Sess. Laws Ch. amended 1996 by Ariz. 1501); 190(c), § § (originally 280, No. enacted as 1975 Ark. Acts Cal.Rptr. 1988); (Prop. § 67, 7, June 1006, C. 1 amended 1987 Cal. Stat approved by 18-3-107(3) (originally Laws, H.B. § enacted as 1988 Colo. Sess. Colo.Rev.Stat. 636(4), 5); § § Laws, 284, c. 1 § amended 59 Del. 1165, 11, Del.Code Ann. tit. by 2(d) § (1973); (originally § 70-256, Law 22-2406 enacted as D.C. D.C.Code Ann. 701-701(1)(b), (1995)); c. § 1986 Haw. Sess. Laws amended Haw.Rev.Stat. by 18-4003(b) (originally § as 1972 Idaho Sess. § enacted 314, 49; Idaho Code 1); 35-50-2-9(b)(6) (originally § as 1977 Ind. § enacted 336, ch. Ind.Code Laws 707.2(4) 122); (originally § Iowa § enacted as 1976 340, Iowa Code Acts P.L. 21-3439(a)(5) 702); (originally § enacted as § Stat. Ann. 1245, Acts ch. Kan. 30(A)(2), 1); § § Ann. amended 252, by Laws ch. La.Rev.Stat. 1994 Kan. Sess. 750.316(1)(c), § § amended 109, 1; No. Mich. Stat. Ann. by 1973 La. Acts 609.185(4), § Minn. § amended 267, 1; Minn.Stat. by Mich. Pub. Acts No. (originally § § enacted as 1974 Miss. 227, 9; Ann. 97-3-19 Laws c. Miss.Code 200.033(7) 6(1),(2)); (originally § enacted as 1977 § 576, Nev.Rev.Stat. Laws Ch. 125.27(a)(i),(ii) 1542); 630:1(I)(a); § § § N.Y. Law Nev. Stat. N.H.Rev.Stat. Ann. 5); § (originally Ohio Rev.Code. Ann. 367, N.Y. Laws c. enacted as 1974 2903.01(E), 21, 193, 5;H. Okla. Stat. tit. § Ohio Laws S. amended 701.12(8), § 147, 1; Laws c. Or.Rev.Stat. § 1981 Okla. Sess. amended by 1); 163.095(2)(a) § (originally R.I. Gen. Laws § 370, 1977 Or. Laws c. enacted as 11-23-2(5), § 221, 1; Tenn.Code. Ann. § 1984 R.I. Pub. Laws ch. amended by 1); § 591, Tex. (originally § Tenn. Pub. Acts ch. enacted as 1989 39-13-204 19.03(a)(1) (originally Tex. Gen. Laws ch. § enacted as 1973 Code Ann. Penal 1); 76-5-202(1)(e) (originally § enacted as 1973 § Ann. art. Utah Code 2311(a)(7) 76-5-202); (originally §13, § Vt. Stat. Ann. tit. Utah Laws ch. Jersey exist in New or in other states in 1963 is attributable to the sentencing philosophy prevailed throughout na criminal sixties, during tion the nineteen-fifties and and reflected the view Supreme expressed then the United States Court that “[r]etri objective longer bution is no the dominant of the criminal law. impor Reformation and have rehabilitation offenders become goals jurisprudence.” People tant of criminal v. Williams State York, 241, 248, 1079, 1084, New 69 337 U.S. S.Ct. 93 L.Ed. 1337 (1949). Board, General, represented by Attorney The Parole ac knowledges that the Ex Post Facto Clause United States Constitution, I, 9, 3, § par. prohibits applica Const. art. U.S. respondent Jersey’s mandating tion to of New current statute life imprisonment parole murdering” without for those convicted of police duty. in Accordingly, officer the line of in in law effect committed, supplemented by 1963 when the murders were 1979, 1979, 441, -69, Parole Act of L. c. N.J.S.A. 30:4-123-45 to governs respondent’s eligibility parole the source of law that for today. effect, (repealed),

Pursuant to the law then in 2A:113-4 N.J.S.A. Trantino was sentenced to death based on his conviction for first- degree provided murder. That statute penalty had that the for first-degree jury murder was death unless the recommended life imprisonment. unanimously upheld In 1965 this Court his convic I, 371, supra, tion and death sentence. 44 N.J. at 209 1972, Supreme A.2d 117. In on the basis of the United States Jackson, 570, opinion in Court’s United States v. 390 U.S. 88 S.Ct. 1209, (1968), 20 L.Ed.2d 138 this Court concluded “that the United Supreme States penalty Court has declared the death to be Funicello, unconstitutional under our statute.” State v. 60 N.J. 60, 67, (1972), Jersey A.2d 55 cert. denied sub. nom. v. New Presha, 942, 2849, (1972). 408 U.S. 92 S.Ct. 33 L.Ed.2d 766 60, 1); 18.2-31(7), § § enacted as Vt. Acts & Resolves No. Va.Code Ann. 1977 Va. Acts ch. 478. amended Supreme decision that of the United States Court’s Because statute, Jersey’s effectively penalty invalidated New death this Funicello, Court that the defendant and the defen determined dants “in all the other which the death sentence was [cases] 60 N.J. imposed,” at 286 A.2d would be “sentenced to life initially imprisonment -... as of the date the death sentence initially imposed,” be as if and would “entitled to same credits 67-68, Id. imprisonment.” life 286 A.2d 55.2 sentenced to time, prevailing Jersey in New at that no Pursuant to the law imposed more have been after the death severe sentence could penalty was invalidated. Act, expressly N.J.S.A. 30:4— 123.51(j), provides Parole primary parole eligibility date for inmates sentenced to Trantino’s crimes imprisonment

life under the law effect when with the were is to determined accordance committed be L. act, 84. provisions of the former c. Pursuant statute, imprisonment sentenced to life became defendants years, eligible twenty-five less for after deductions commutation time and work credits. See N.J.S.A. 30:4-123.11 (repealed) (“Any prisoner serving a of life sentence shall be parole eligible having after for consideration for release served sentence, twenty-five years good less commutation time for by diligent time earned and allowed reason behavior and credits application Accordingly, when assignments”). to work this Court eligibility parole, for first had occasion address Trantino’s 2 In Division brief Trantino notes that all other defendants whose his Appellate Funicello, death were life in have sentences commuted to imprisonment supra, long Bisignario, that Russo and since been He observes defendants paroled. during in who a in a were sentenced to death killed Newark robbery, policeman 1973; Belton, who killed a Fort Lee 1961 and in James policeman, paroled to death in 1967 and served fifteen in Clarence years sentenced prison; Billingsley, young 1964, two in served sixteen who stabbed sisters death years remaining August 12, 1980, conditions, role subject release effective to includ ing supervision intensive and restitution to the victims’ families II, an amount sentencing to be fixed the court. Trantino supra, 89 353-54, at N.J. 446 A.2d 104.

127 restitution, fix the amount of After the Division declined to Law its release and then Parole vacated earlier order the Board 23, 1980, subject again a release date of December established new Simultaneously, the Board special condition. to restitution as restitution, declining fix the to appealed Law Division’s order reim appealed December 1980 decision Trantino from Board’s parole. Appellate Division posing a condition restitution as of declining to fix amount for Division’s an affirmed Law order December decision reversed the Board’s restitution and re Parole reimposing as a of restitution condition 521-23, Trantino, 499, N.J.Super. Application Thomas (App.Div.1981). A.2d 91 petitions for granted

This Court both the Board’s Trantino, 87 Application Parole Thomas certification. In re (1981). 385, although held that restitution 434 A.2d 1068 We N.J. may parole the Parole lawfully imposed as condition of under be scope was perception of the of restitution Act of the Board’s obligated broad” that the Board imprecise “much too sentencing specific guide criteria and limit the to establish paid. of restitution to be court’s determination of amount II, 361-63, 446 A.2d 104. supra, 89 N.J. sentencing philoso also noted the substantial difference We Justice, of Criminal N.J.S.A. 2C:1-1 phies between the Code 104-8, 2A Trantino was provisions and the Title under which sentenced, observing although inmates sentenced under punitive aspects of their will have satisfied the presumptively Code becoming parole, may not be eligible for sentences when first 2A. Id. at 446 A.2d case for sentenced under Title inmates Board Accordingly, remanding the matter to the Parole 104. punitive aspects Tranti required we the Board “reassess considering and his the extent of his rehabilitation no’s sentence in parole.” A.2d 104. also noted Id. at We fitness determination, as parole such “public outrage over an imminent case, place in a has no that which has occurred this Id. given weight in a decision.” proceeding and is to be no 376, Finally, 446 A.2d 104. we held that “the Parole Board is authorized to reconsider and redetermine Trantino’s fitness for parole---- If the Board determines that Trantino has not been and, punished sufficiently reason, any others, for that as well as it appears by preponderance of the evidence that there is a activity released, substantial likelihood of future criminal if he is deny the Parole Board parole.” must Id. at A.2d 104. remand,

On the hearing resulting Parole Board held a new parole the application denial of Trantino’s imposition and the of a (FET). ten-year eligibility future term In announcing its determi- nation in October the Parole explained Board Chairman to upon completion Trantino that ten-year eligibility future term, credits, less punitive commutation and work aspect Trantino’s sentence would be According considered to be fulfilled. Chairman, to the Board punitive Board concluded that the aspect of Trantino’s life prisoner sentence as a Title 2A should be approximately equal twenty-five year to the parole ineligibility period imposed on a prisoner. Title 2C life-sentenced See 2C:43-7(c). N.J.S.A. Accordingly, the Board Chairman encour- aged Trantino to assume that serving twenty-five years after (1963-1988) prison presumptively he would be eligible parole for “through unless you something [aberrant] behavior were to do gave rise to its reconsideration.”3 3The Chairman stated: Okay. Act, The State Prison cases under the Parole when there is a denial of parole obligation eligibility Board has an to set a future term. What the eligibility carry Board did was set a future term that would with it a presumptive punitive aspect, other words we've considered the we’ve —in that, integration considered the rehabilitative up into and we’ve come with eligibility the future your term. When that term has been served credit pattern earning you’ve made, you've established and the fine efforts that you say something you hope can then to to. In other words we are —it's saying approximately years that in perhaps five to five and a half when year mandatory might minimum have been served had that been im- posed, you right presume have under the current law the that there will presumption you

be. Where that was not available to because this was a served, FET, credits, ten-year less had been when panel recommended release. a two-member Board However, deny majority of the Board voted FET, six-year apparently imposed a on the basis of drug counseling long-term psy- unwillingness participate in or unpublished opinion, Appellate Division chotherapy. In an upheld the Parole Board. that determination 1990, parole in and eligible next for November Trantino became imposed four-year a FET. In the Parole Board denied and decision, however, 1991, resulting in a May that the Board vacated again hearing September in 1991 after which the Board new FET, three-year imposed a “with recommenda- denied and Corrections) place Trantino in (Department of Mr. tion that DOC denying parole decision issued halfway a house.” its formal 9, acknowledged positive “the efforts Mr. 1991 the Board October incarceration, specifically partic- during his Trantino has made counseling programs substance abuse ipation psychological in and However, that hearing.” the Board determined since his last degree precode it to that. So that there is some case. We’ve tried to move hearing today certainty you. you We felt that shouldn’t leave this for tunnel, understanding hope light at the and understand it without — end, society obligation to understand. But the Board will has that also maybe going just saying denying we are to we now and next time is not are saying going deny. deny maybe we time we are to What are next all, punitive aspect of the once and for we dealt with the issue resolved, through aborant for us is unless of course sentence. That issue something gave you to its reconsideration. were to do rise [sic] behavior done, weren't, looking aspects we are now it and all those have been But if you day when will be released. at a trying certainty. very strong a Because felt in to arrive at I think the Board certainty hope any strongly for individual that there should be we feel incarcerated, day will be released at— can look to the that he who is so he things good provided good and he has and all the are earned his behavior is very, privilege. has tried to do. It was And that's what the Board do, very ourselves at but have resolved that for difficult decision to it —we this time. 437, 475, Board, NJ.Super. Jersey 687 A.2d Parole 296 [Trantino v. New State J., (Trantino /!/).] (1997) {Pressler, dissenting part) 274 in group individual and “can still further benefit from Trantino opportunity achieve his giving greater him a to counseling thus yet concluding that “rehabilitation has not potential,” rehabilitative aspect sufficiently punitive of his achieved and therefore been Board members Andrew Conso- sentence has not been satisfied.” In its voy dissented from the denial of and Luis Garcia following made recom- decision the Parole Board October 1991 mendations: programs suggested It is that Mr. Trantino continue his participation supportive himself for his eventual return available within the institution better prepare of his to criminal reduce the likelihood return thereby activity

the community urges Full Mr. Trantino to ... make his release. The Board every upon effort order the Board to evaluate his behavior in achieve house status in halfway less structured environment. added).] (emphasis [Trantino III, 687 A.2d supra, N.J.Super. requested Superintendent promptly that the of River- halfway to a house. The front State Prison authorize his transfer orally request Superintendent disapproved that December writing April 1992. Id. at and confirmed his denial A.2d 274. eligible parole in In

Trantino next became for November 1992. denying opinion addressing ruling the Parole Board’s 1996 its FET, III, parole imposing ten-year a Trantino and supra, N.J.Super. Appellate A.2d the Division 687 majority described the result of Trantino’s 1992 efforts to achieve parole. The court stated: eligible again for 1992. June, Trantino became The deferred parole panel psychological until an evaluation could be held at and Avenel, decision in-depth pending psychologist with thereafter an interview the who the in-person performed hearing evaluation. On a was conducted after which one member of 2, 1993, April other, the Andrew voted to release Trantino on and the Panel, Consovoy, parole believing that was Jones,

Arthur voted to house essential deny, halfway placement long to for someone incarcerated as as Trantino. Consovoy parole quite handling asserting has critical of the that “this case never been case, right treated the same as other case” and the fact there is no that, way any despite to the case “should be treated on the merits.” He insisted that Trantino’s parole, progress program a his warranted as because, as prisoner participation parole he to what to Trantino, do, done needed done explained “[y]ou’ve you’ve you’ve urged legal all can him to take action the house do,” and because you halfway rejected “cannot be the of Corrections.” application Department agreed for saw no written reasons the denial they halfway The also panel was not denied a status and that Trantino’s house halfway application house to manner. then announced the decision deny parole Gonsovoy panel’s proper grant FET would not Trantino halfway a month because DOC thirty-six impose against that Trantino file suit the DOC.4 house status. also recommended They

[Id. 274.] A.2d 449-51, 687 FET, three-year imposing 1993 decision its December panel Parole stated: Board in our environment, Trantino has in his current restricted done opinion, Mr. Parole the most Board, to address these and other issues identified best progress. acknowl- therefore, reflect this This recent panel, professional reports edges within the confines that Mr. Trantino has reached his rehabilitative potential following mem- determination included the comments by panel panel’s ber Consovoy: case or other case we cannot— If the Court tells us that any your house as a case, in a 2A we cannot demand halfway placement especially board has to deal with it to then frankly parole approval,

pre-condition as it is. setting in the in and it’s also the And in you’re opinion my opinion, times, have, last that have evaluated two you you professionals inmate who's reached his fact, reached rehabilitative Any your potential. gratuity whether we rehabilitative on a sentence must be paroled potential want to or not. legal them to see, Tom, there is no reason for But in this you situation — through I that. You meet criteria. house. We’ve been every deny halfway belongs, suggest and I That take this matter where it follow it. you you tug-of-war belongs judicial to referee the believe this matter before the body between the board and the DOC. to the end. You’ve done Tom, But it’s it’s come your years. come — program status, can. You achieved full-minimum You’ve done you every and tell the status. If the Courts come back had full-time minimum you’ve trying do, then that we can’t do what we’re basically board you (indiscernible) I can’t I would to speak anybody have parole you. my (indiscernible) I know, time, I last and you people else. voted parole you (indiscernible). think this, but hear, and don’t understand what wanted to you This is not you got got to end thing It’s to end. It’s that can this is best happen you. right going judge judge the DOC or and the to tell they’re before a you’re right. are on to going And then the way to tell the board you you're get out. 451-52, 274.] 687 A.2d [296 NJ.Super, setting. given the facts of this However, specific of his current state prison to function in to this even crime, the absolute case; inability society prior particular long real and not his and difficult towards path superficial as supervised parolee; major length addressing issues; some and the with his rehabilitation; only recently judged cannot be reached his [W]e of his incarceration.... believe he have until he has achieved an intensive, and full rehabilitative and unless true potential rigorously gradual reintegration into New society. and supervised, therapeutic goal through to achieve this crucial is the the means present Jersey, only house the Corrections Mr. Trantino in halfway placement by Department of of while still an inmate. believes that this last and vital must be The Parole Board firmly step attempted granted Mr. Trantino could even be considered to be rehabilitated and fully before Although that Mi-. we believe that it is not unreasonable conclude resolving strides in his and internal Trantino has made impressive problems knowledge will full of conflicts that led to these homicides we have this man’s only through reintegration of a based halfway rehabilitation the process community readjustment setting. house In that context we can evaluate Trantino’s societal not to societal and not institutional and to stresses, failures, institutional through can societal not institutional this Only process temptations. judge if is of Parole Board this man has been rehabilitated. The Adult Panel truly that the of Mr. Trantino to a house should be done the opinion placement halfway legitimate an inmate to insure the interests of all while he is parties. Panel that Mr. Trantino can enter The Adult opinion successfully if program as an he can achieve a correctional house inmate complete halfway rehabilitative and. will his satisfy punitive aspect potential full therefore sentence and meet the likelihood test. substantial (footnote added).] omitted)(emphasis [Id. at A.2d 274 453-54, 687 express findings, in with the Parole Board’s Novem Consistent 1994, again January applied ber to the Department halfway to a house. Corrections for transfer Those ,1995 February requests were denied in 1994. A letter from June explained of Riverfront 'that the denial Administrator Prison receipt was based on the of threats to kill Trantino if he were house, offense, placed halfway in a the circumstances of the reaction, possible community objection risk of adverse and the of a Legislature. member of the 5 That letter read in part: On inmate Trantino made January application community

release with Volunteers of America and Clinton House as his place preferen- assignments. tial His was referred to Institutional Classifica- application again applied 1994, parole September for but the hearing panel parole imposed three-year denied and In FET. its 17, April explaining September 1995 decision for reasons parole, panel 1994 denial of acknowledged that Trantino “has progress made enormous reaching toward his full rehabilitative potential years incarceration,” in the 30 of his but concluded that Trantino “has not reached full potential, his rehabilitative there- punitive aspect satisfied, fore the of his sentence has not been and that a substantial likelihood that he will commit a crime if released exist, parole on this time continues to and is denied.” (We finding note that the concerning punitive aspect Board’s Committee, 2, by February tion chaired Donald E. Lewis on 1994. Mr. discussed, request halfway assignment

Trantino's for house and the rejected (2) request. upon committee [sic] The denial was is based two factors: threat, office, by my warning 1. Letters of received that Mr. Trantino would (3) paroled. unsigned very crudely be killed if The three letters were and alphabetized, meaning written. One letter was constructed letters cut out magazines newspapers spell from out the threat. The did letters not place origin identifying have a the area where mailed. Letters were mid-January, received on or about and were shared with the Classification Committee in order to render an informed decision. 2. The committee also took into consideration the circumstances of the possible community offense and the risk of adverse reaction if inmate permitted participate community Trantino was in a residential release program. factors, considering In all of the above a unanimous decision was ren- Committee, keeping dered the Institutional Classification with the provisions Jersey provides of New Administrative Code 10A:20-4.12 which disposition. Institutional Classification Committee review and advised, threat, notwithstanding Further be the letters of inmate Trantino would have been denied based on other factors referenced under the above provision. high visibility notoriety, through cited As his case has through vehemently objected news media and Senator Kosco who to the community release of inmate Trantino. concluding report, misplaced, this the letters threat have been as it is Affairs; however, my they processed recollection that were to be to Internal procedure, possible they this ais standard and it is were misdirected. assistance, your application, For further review and I have Mr. Trantino's reports addressing classification blocks and to Senator Kosco all the situa- tion of inmate Trantino's Dietz’s directly Chairman contradicted Trantino’s sentence year FET “the imposition of a ten after 1982 that statement resolved.”) 26, April ... On aspect punitive of the sentence appeals the Board 1995, from full Board denied September determinations of November Panel its However, Parole Board vacated August 1995 the 1994. hearing during parole a new April 1995 decision and scheduled following the month. 14, 1995, Board a two-member hearing September a on

After to Trantino that it intended parole and informed panel denied eligibility a future term guidelines” and establish “exceed the Although acknowledged thirty-six the Panel greater than months. achieving your you towards rehabili- great have made “the strides thirty-two years,” the potential the course of the last tative over parole on Trantino’s failure to primarily its denial of Panel based aspects crimes. The decision stated: certain of the remember regarding certain details that failure to remember It is the Panel’s belief your reaching inhibiting In sum, rehabilitative murder is from you your potential. the that until can remember events Panel is of the you specific the Adult position Sgt. including firing gun regarding will not be Voto, the that killed murder, you the will not achieve rehabilitative role in the crime and your able to fully accept your will there is a substantial likelihood you the Panel believes Therefore, potential. belief that based on if The Adult Panel commit crime released parole. criminal sentenced, record, for which were your prior the of the crime severity you long counseling, eligibility term a future date established need for your 10A:71-3.21(a) the Adult Therefore, to N.J.A.C. is clearly inappropriate. pursuant referring of a future to a three member for establishment Panel is case your panel 10A:71-3.21(d). guidelines, eligibility to It is code N.J.A.C. date beyond pursuant eligibility to N.J.A.C. 10A:71- Panel’s that a future term pursuant the Adult belief 3.21(d) undergo long-term psychological counsel will allow the you opportunity ing. counseling will to remember specific this aid you your attempt Hopefully, shooting Sgt. regarding that took Voto and other events place details murders. before and after the immediately at Panel is aware that a different Board Panel determined your parole The Adult hearing that had reached rehabilitative on November you your potential progress toward real and not within the confines of your superficial prison in a as an could maintained house halfway rehabilitation be only placement be in a have on numerous occasions to placed halfway inmate. You attempted Corrections has denied continually you house as an inmate. Department of this Adult Panel believes into a house. While placement placement halfway goal into a house would be reach you halfway you your your beneficial rehabilitative it is this Panel’s determination that this is not potential, certainly goal. means which can achieve this It is this Panel’s only you position goal through long psychological counseling can reach this term in an you eventually setting. institutional added).] (emphasis [Trantino III, 458-59, 687 A.2d 274 supra, N.J.Super. April impose ten-year In the full Parole Board voted to interim, eligibility Appellate future term. Division appeal reinstated Trantino’s from the Board’s 1993 and 1994 dispositions, permitted challenge also to Board’s most recent denial of in 1995. Appellate panel upheld

A divided Division the Parole Board’s imposition ten-year primarily denial of FET of a on the inability basis of the Board’s conclusion that Trantino’s to recall credibility details of the crimes evidenced a lack of candor or suggested activity a likelihood of future if criminal Trantino were 466-71, However, released on Id. at 687 A.2d 274. Appellate majority emphasized position Division the “consistent prudently grant parole long-term the Board that it cannot to a murder, prisoner, performance convicted of a crime such as before halfway facility thoroughly in a house or residential can be evalu- 465, Accordingly, concluding ated.” Id. at A.2d 274. after request Department that the of Corrections’ denial of Trantino’s halfway placement supported by a for house was not final determi- reasons, Appellate adequate nation with an statement of remanded the matter to the for “consideration of an Division DOC (or transfer) halfway updated application house for out-of-State findings regard and for and a statement of reasons with to such 464, application.” Id. at 687A.2d 274. Pressler,

Judge concurring part dissenting part, in and agreed with the remand to the DOC but would have directed the pre- place “forthwith to defendant Thomas Trantino a DOC facility paróle halfway house or residential or to effect his out-of- (Pressler, P.J.A.D., placement.” Id. at 687 A.2d 274 State concurring part dissenting part). and She added: to the I would remand action of such by Department, In the absence prompt including, if conditions consideration of parole-release Board for its

Parole prompt a monitored is not then closely house possible, a halfway placement pre-release as the Board as such other conditions as well placement post-release I am I would so do because persuaded and concludes are necessary appropriate. overwhelmingly and unreasonable- the arbitrariness demonstrates that the record house or out-of-state denial of halfway placement ness both Department’s and to that denial, deny parole decision, the Parole Board’s responsive eligibility term. future ten-year impose [Ibid.] 1(a)(2), Court, based right this R. appealed as of Trantino 2:2— opinion, affirmed that unanimous we below. In a on the dissent holding the De- judgment Appellate Division portion of the halfway Trantino to a refusal to transfer partment of Corrections’ adequate statement of reasons. supported an house was not (Trantino (1998) IV, 22, 711 A.2d 260 supra, 154 N.J. at IV). upholding the judgment Appellate Division We reversed fixing ten-year FET based parole and Board’s denial of Parole on a Board’s decision was not “based conclusion that the on our evidence and ade- supported proper standard sufficient added). (emphasis 711 A.2d 260 quate findings Id. offact.” governing Tranti- Accordingly, clarified the standard this Court to the Parole parole eligibility and remanded the matter no’s redetermine Trantino’s the evidence and Board to reconsider eligibility Ibid. although Parole Board did not specifically noted that

We fitness, recent criterion of its most ignore recidivism as a had made appeared focus on whether “Trantino decisions ‘fully ‘reintegration society,’ was progress into sufficient toward rehabilitated,’ potential,’ real rehabilitative had had realized ‘his potential,’ full rehabilitative and had reached his ‘true and superficial ‘complete[] and not rehabilitation’ achieved ‘real ” According- Id. at 711 A.2d 260. total[ rehabilitation].’ ] record was unclear on whether ly, we determined that the on the a test that focuses and essentially the Parole Board invoked primarily exacting and or it followed the more of criminal recidivism whether likelihood not that an inmate of full or rehabilitation that assures only difficult test complete law-abiding continue to lead a life, but also that or will he she will assume a in role consistent with the responsible society welfare. public

[Id. at 260.] 711A.2d opinion In our extensively we commented on the evidence in the suggesting record that" prison Trantino’s rehabilitation in sufficient to indicate a low likelihood of recidivism. We stated: determining Trantino’s record material prison plainly whether he has achieved a level of rehabilitation such that has he been deterred and sufficiently no

there is likelihood of recidivism. That record discloses substantial of evidence significant tending rehabilitation to demonstrate that Trantino has overcome any likelihood recidivism. He has no had substance abuse violations in no and prison rules infractions since 1970. Trantino has work already participated sixty-nine gone and recreation details that involved excursions into the has and community overnight furloughs without incident. Further, he has seventeen completed pro- grams designed to enable him to fellow inmates and has been in help individual and group for the psychotherapy past twenty-five years. Finally, supervi- sors have rendered favorable prison consistently reports. Psychological also evidence a determination of substantial rehabilitation supports militating against the likelihood of recidivism. Dr. James one of Bell, two evaluating psychologists, said in his “[W]ithin July report: prison system, [Trantino] has an been inmate and not has exemplary invested several only programs programs himself, but also has improve started several to assist offenders youthful and substance abusers.” Dr. delinquent Bell further stated in his report: change he as a Clinically, man who has reached a impresses come about point

through great wrong sincere self-inventory atone for the he aspirations has done in his life. He has mental and emotional resources to adequate live suggests self-reliant life. His socially responsible, PASS score of 66% an above average success. possibility post-release August Ferguson, evaluating An psychologist, 1995 evaluation Glenn the other states: [Trantino] Thomas functions Presently, more as staff member in the prison

than an as inmate. He has a well-rounded and developed reputable support manage which network should enable Thomas to the increased stress level living high He has a independent level of motivation for optimally. continued education, His therapy realistic and employment. employment plans appeal including copyrighting attainable, technical work with his wife’s company creative work in art and combination of well-established social therapy____The ongoing age motivation for will most supports, treatment, lead to a likely successful outcome. (citations omitted) (footnote omitted).] [Id. at 32-33, A.2d 260 Concerning the Parole Board’s determination that Trantino’s inability to remember preventing details of the crime was him potential, full this Court observed reaching his rehabilitative from memory record Trantino’s loss that evidence in the that “there is and, consistent, genuine, beyond long-standing and the issue of is recollection, acknowledgment responsibility of sincere and his acknowledges accepts responsibili- legitimate. That Trantino parole ty in the record of his numerous for his crimes is disclosed 260. noted that Trantino’s proceedings.” Id. at 711 A.2d We for responsibility full the crimes was corrobo- acknowledgment of whom, Fergu- Dr. psychologists, one of Glenn rated two Board “ Trantino, son, August ‘[Tranti- in of stated: his evaluation offense, consistently of the actual has claimed no recollection no] murders, light although accepts responsibility full for in he both holding testimony, gun a eye his recollection of both witness 35-36, the Id. 711 A.2d 260. prior to and after offense.’” at provide record an ade- Accordingly, we held that the did not evidentiary rejection quate basis the Parole Board’s for 36, 711 psychologists. of those two Id. at A.2d 260. conclusions Further, clearly held that record not sustain the we the “does long-term in a psychotherapy conclusion that will eventuate break- through or a [of crimes] recollection the details that such necessary, repeated given acceptance Trantino’s recollection is responsibility, in order that has achieved a level of to ensure he will, that he if re- rehabilitation that eliminates likelihood leased, commit crimes.” 711A.2d 260. Id.

Finally, remanding in the matter to the Parole Board to recon- again engage sider there is a likelihood that Trantino will whether activity, provided specific this instructions con- criminal Court cerning proceedings the remand before the Parole Board: evaluating standard, under this Board fitness for Parole give weight should to the Trantino is old and, facts that now as sixty years already furloughs has been released on work details and two noted, sixty-nine previously

without has not a has incident; violated correctional rule twenty-seven years; counseling; substance abuse has educated himself while successfully completed for has a has available vocations stable support prison; pursued prisoners; network; Tract, was housed without incident at the Wharton without facility guards; has fit for the last been deemed transfer two perimeter psycholo- gists light length evidence, evaluate him. that of time Moreover, has served under and the occasions on sentence, successive which he eligible longer has been deemed parole, is no material consider- punishment ation in the determination. In its Board can determination, devise conditions that will allow pre-release it to assess how Trantino handles the stresses of that or induce society may impel him to commit crimes. Those conditions could work include community details, furloughs, minimum and other security status, measures would serve to gradually reintroduce Trantino into to his and lead ultimate release. society the Board decide to Alternatively, may conditions, such as impose post-release drug testing, intensive supervision would ensure Trantino was not behaving engage in a that he will indicates in criminal way activity. In its redetermination of fitness, the Parole Board also parole may consider house treatment a condition of halfway as

[Id. at 39-40, 260.] 711 A.2d Ill Proceedings on Remand to Parole Board

A. Introduction

Immediately following May reversing this Court’s decision imposition ten-year the Parole of a Board’s denial and of FET, remanding and for a new consistent determination opinion, request with this Court’s Trantino renewed his for trans halfway fer a in anticipation parole hearing. of new house his that, Department regulations require prior of Correction to trans house, halfway undergo fer to a inmates a must “risk/needs” two assessment at one of residential substance-abuse treatment DOC, by centers with approved under contract and be for transfer (I.C.C.). the Institutional Classification Committee See N.J.A.C. 10A:20-4.4, by 4.5 and 10A:9-31. After an evaluation a DOC psychologist July halfway- 1998 found Trantino suitable for placement, house the Riverfront State Prison I.C.C. recommended Kearny, that Trantino be transferred to Talbot Hall in one of the prior residential that treatment centers screened inmates to half way-house assignment. The of Assistant Commissioner DOC approved was the recommendation and Trantino transferred to 18, 1998. August

Talbot Hall6 on immediately assign- that after Trantino’s The record reveals public protested numerous officials trans- ment to Talbot Hall fer, ex- a statement issued the Office the Governor “surprise” request that the pressed her over transfer her Attorney Attorney by the General. transfer be reviewed psychological that new evaluation be requested office General’s Dr. Michael Weiner to determine whether conducted assignment appropriate. Hall was Dr. Weiner issued Talbot 9, 1998, report finding things among other on November history prior but that his Trantino’s risk recidivism was low required again participate in an substance abuse he Alcohol- prior ics-Anonymous-type twelve-step program community re- later, 12, 1998, days Three on November the DOC’s lease. determined, Community Classification Committee at Talbot Hall report psychological tests the basis Dr. Weiner’s various Hall, Trantino administered Talbot was unsuitable for halfway placement part presented “escape he an house because problem.” risk” had an abuse “unresolved substance day Woods, security a medium transferred that same to South prison, assigned with a recommendation that he be to substance however, Woods, application program. abuse At Trantino’s South rejected program for in enrollment its substance abuse was be- substantially requirement cause his score was below the minimum Severity program, on Test an Addiction for admission to the rejection significantly he the asserts that that undermined reliabil- ity the Talbot of Hall Committee’s determination. Trantino’s cross-petition challenges legality for the of his certification trans- unreported In opinion fer from Talbot Hall to South an Woods. America, operated by Hall is and Health of Inc. Talbot Education Centers pursuant agreement years, with an of to a 1995 the DOC for initial term ten subject right agreement any to the DOC's to terminate the time cause without thirty days’ compensation $65 on rate notice. The basic under the contract is daily each DOC inmate housed at Hall. for Talbot Appellate previously Division has dismissed as moot the appeal asserting illegal. that that was transfer Hearing

B. Adduced Evidence at Parole Board us, magnitude view of of the record before which includes only testimony not presented evidence and at the Parole Board’s hearing appellate latest remand but also the entire record under- lying disposition, this Court’s 1998 we will focus our attention on specifically grounds the evidence that relates to by relied on denying Board in Parole its Board based June deny parole to primarily grounds: decision on four 1. psychological “The Board with Parole is concerned as primarily your profile, Ferguson. Ferguson’s reflected Dr. by Dr. testimo- primarily testimony leads the Board that it ny Members conclude would commit a likely you crime if released parole.” regarding “The Parole Board is also concerned* lack of a suitable your 2. light Ferguson’s in of Dr. plan, comments.” especially psychologi- 3. “The Parole Boat’d is also with concerned failure to in your address counseling engage cal the issues that led domestic violence with you your first wife.” long standing “[T]he 4. Parole Board Members are concerned about very your being psychologists less than candid with Board Members history about issues that are at the core case.” your Although specifically ground not separate characterized as a for parole, denial of professed Trantino’s intention to a second write sharply book denying criticized the Board its decision parole. “Perhaps your hearing no other conversation at on June exemplifies you great areas which have not made your changes, with regarding than conversation Mr. Gomez you possibility writing you paroled.” if were book We summarize the evidence in the record that is relevant to grounds each of the denial of advanced the Parole Board. do so in We reverse order because the evidence adduced ground, psychological pro- with the connection first file, complex relating is more than the evidence the other grounds. Another Book Trantino’s Plan to Write

1. criticized hearing, Board member Gomez At the June a book. intention to write second again, going to once are suffer. victims, is basically MR. GOMEZ: The problem going suffer. You suffer about Charlee are is, say you You know what it you [m], want to talk but don’t hear about [Trantino’s wife], you people second willing to write book— are you No. MR. TRANTINO: again. have suffer

MR. GOMEZ:—And people willing that is intention. If I am not to do and not No, that, my MR. TRANTINO: again, families, be about their their to write it wouldn’t certainly I a book try members. family missing MR. GOMEZ: You are the point. getting am it’s not—

MR. I but point, TRANTINO: profiting, profiting. are MR. GOMEZ: You are you profiting from a crime. Yes, MR. TRANTINO: talking putting You You are about salt wounds. don’t people’s MR. GOMEZ: putting salt in wounds? think that people’s Yes. MR. TRANTINO: as as that.

MR. GOMEZ: It’s simple thinking I was not about that. MR. TRANTINO: last MR. GOMEZ: The question. thinking— I was

MR. TRANTINO: if I one more want, MR. GOMEZ: have you only question. Continue ahead. MR. TRANTINO: Go hearing responded to during

Later the June Board Member Gomez’s criticism: thinking I debt that

MR. TRANTINO: What was was Charlee Charlee’s trying something has and to do about that. she MR. CONSOVOY: Now— taking what Mr. And now the book I’m book, very seriously

MR. TRANTINO: saying said what are here. Gomez you Please do. MR. CONSOVOY: I it have this to over times never, expressed you many

MR. TRANTINO: does—I it hurt I had a that could have here, me, mother, about the families does really just thing, I the sorrow it could have been the know mother, been my opposite feelings hurt I that the kind of I wouldn’t want to them. What would they have, doing not to hurt them. be would be that’s I that’s have to in or MR. CONSOVOY: But one as say why you point, go where ever we are done with must today, you out of when prison, you may diagnosis this deal with narcissistic and the what thereof, features because that’s saying that I am is, them, Tom. not meant to hurt to hurt you you don’t mean things at them, but look that’s how You way you you looked it. were good doing thing ruining— for Charlee. On the hand, other were you MR. TRANTINO: I don’t know.

MR. That is CONSOVOY: my point.

MR. TRANTINO: Yes. addition,

In during Trantino’s final remarks at the June 9 hearing, he stated: just just brought

What said a lot, bothered me about the families. It you stuff, up I work on it you know, that, and hurts. I don’t to hurt And now I want them. going am have to —I to rethink about what the book. After Mr. Gomez you and anything, that lot. out, bothered me a more than I’m what I pointed I, sorry I did, shot and killed two And it took, wasn’t their lives I their people. only right pointing families, their families as well were affected to this day, as are you something out that here. And that I I I with, with, live to deal try try try I am ashamed of heal, that. 2. Candor Lack of “examples

The Board listed seven of when Trantino has been psychologists mitigat- less than candid with or [has authorities or aspects personality.” ed] [in his] central events life or of [his] (a) Talbot Hall Incident February

In 1999 the Parole Board an conducted interview Trabucco, telephone Joseph psychological with the Director of Hall, testing qualifications at Talbot whose include master’s degree psychology. September public In after numerous Hall, protested assignment officials had to Talbot Tra- question bucco administered to Trantino a test true-false MCMI-II, suggested known as the result which that possessed psychological dysfunction a mild to moderate “[although major stated violence is not a characteristic of repertoire, may this inmate’s be behavioral there occasions when provoked, although readily.” violence can be not de- Trabucco individual, very scribed Trantino as “a controlled about thinks saying, to, speaking calculating what he’s thinks about who if he’s you response Consovoy’s question will.” to Board Chairman “any specific concerning types might provoke him instances violence,” Board deemed related an incident Trabueco assessing of recidivism. Tra- significant Trantino’s likelihood September tested Trantino 1998 he about bucco stated that only during preceding on the basis of events substance abuse problem. abuse year, and test result revealed no substance test, retake the same this time Trantino was then asked to According to responding on basis his entire lifetime. Trabueco, agitated” “definitely Trantino became “sort of perturbed.” “Why you making me do this?” said are Trabuc- He ... crack a that Trantino’s “veneer started to—to little co stated bit,” following in the and described the incident manner: agitated. slightly His face was he was more animated and And he red, kind guys Mr. those at but, know, You I know it’s not said, know, Trabueco, you you, get to And he went into this kind of about how it corrections, out me. spiel they’re making this other and they

wasn’t me that was him take but were test, people, got going and we him to take the results do what wanted to do And they anyway. agitated again, got enough, was sit down and then he the third time and then to up again, going I feel I didn’t that he was to hit threatened, feel, know, now didn’t you anything, or he —it time in this whole here when me but was the only experience highly I was I —when sensed that veneer had cracked to some extent. He pacing, agitated, glasses off, animated and took his was sort of was a different very get well, Trantino I think to see. he [sic] Mr. then most And —and didn’t people get was we couldn’t him to sit the take —the outcome didn’t —we down take long it much in run other and I’m not sure mattered test, part anyway. testing I here, But as look back and look at the results of the and his experience I mean I think what —what it to me that when —when him in was, indicated you put him he situation, when or in a situation doesn’t feel control press him, you put begin begin to see this side of—of this with, or comfortable other totally you you— which, know, vanish, cool calculated tend to and the person, you responses agitation sets in. [Trantino V, 761.] at 752 supra, N.J.Super. 331 A.2d Hall, Smarook, Cynthia at an assessment counselor Talbot who director, by the was interviewed Parole Board’s executive con- firmed Trabucco’s characterization of the incident. also Smarook Hall, during stay he reported at Talbot was “controlled, polite, actually cooperative, he was he was he was chatty,” any prior agitation, had rather not exhibited other told that Trantino denied the than incident. When later incident, responded Smarook that: lying just [H]e’s either or it —it and he it happened fairly quickly put completely his out of mind that —that it occurred. I don’t —I he can’t tell whether or not is lying it. about It —it was he was didn’t deliberately before told he fairly quick have take it based the —the same as the rest of the stipulations population who does. Board, hearing At his June before the Parole Chairman Trabucco, Consovoy, mentioning without referred to an incident during “agitated” “quite Hall which Talbot Trantino became perturbed.” any Trantino denied that such had incident occurred. hearings Between the June and June Board Parole apparently copy report Trantino was shown a of Dr. Rosenfeld’s that referred to hearing, the Trabucco incident. At the June 9 again by Consovoy, when Trantino was about asked the incident specific Trabucco, with explained reference name to his earlier denial and recounted version of what had occurred: Dr., [y]ou [On 4] June didn’t Mr. I [sic] mention Or think is a he psychologist, [sic]. Tribucco psychologist, give I know the now, incident there was a woman she went to me a saying I am this is not test, and it was this room. appropriate, computer including just there, were people back, Other Dr. Trabucco was in the and I turned him, Doctor, could said, I out over here. And he said you what’s help I stated told her that man problem remission, and he this he

problem? not that test, does have take that’s what he whatever is said, not said there that’s not what actually, happened. might angry, INow I have been was but not I perturbed, certainly perturbed, straightened to talk to and he it I able him out. didn’t it, He said have to take right. that I am man is in remission, The he took other all test, the these other he is throw that That is tests, what he said to that woman. okay, away. [Id. 761.] at 752 A.2d 597, Nevertheless, denying parole in its decision the Parole Board responses on relied June 4 Trantino’s inconsistent and June 9 concerning evidencing the Trabucco incident as a lack of candor germane that was likelihood Trantino’s of recidivism: The record indicates that became when asked in the you upset participate Test Hall in SASSI at Talbot 1998. At two Panel September, member your hearing on 4, 1999, June denied that this event full you ever occurred. At your hearing something [B]oard Parole less than a week later, admit did you happen, but it as was denied reflected in statements read to happened Chairman Consovoy (a testing). statement Mr. Trabucco who This you conducted the provided exchange Pages through Page hearing is 9, reflected 236 of the June Board have been than candid you of the Parole less In the opinion transcript. Mr. and Dr. the statements of Trabucco this Board finds about incident the to be than test, who the more credible the two individuals conducted [sic], Smarouk ' regarding incident. this statement your 761.] 752A.2d [Id. 612, the Voto (b) Concerning Lack Candor Murders of of and Tedesco 9,1999 Consovoy Hearing, Chairman

At the June Parole Board responsibility for the murders. Trantino about questioned regardless not [W]hen of whether or [Rosenfeld] you says MR. CONSOVOY: gun? gun, the did fire actually you fired I men. Yes, TRANTINO: shot and killed both MR. You’re sure?

MR. CONSOVOY: I am TRANTINO: sure.

MR. that whether not there was ever evidence any you MR. And or Okay. CONSOVOY: it is that did? shot Tedesco Gary your position you Yes. MR. TRANTINO: parole, Board denying

In its the Parole referred to decision 1967, 1982, 1995, prior and 1998 which occasions pulling trigger claimed that he did not recall committing The concluded that Trantino’s the murders. Board committing testimony he about whether recalled inconsistent denying parole: murders constituted an additional basis light of issue now to a moot statement at June your This be issue your appears hearing now sure and killed both individuals. that áre that shot you you loss also that was evidence that is your The Court stated there memory Supreme standing, long genuine. to the consistent, With all due State respect Supreme not Board, on a of entire does find Court, your record, Parole based review genuine. or at this time claims of loss as consistent issue your past memory is made a for the Board not whether have sincere avowal of you responsibili- Parole [It [sic] of Parole is] for commission of offenses. Board these ty opinion The issue is in the sincerely rather, opinion have claimed you responsibility. psychologists not candid with Board, have been in the past Parole you regarding night this Board lack candid- or Members your memory ongoing on a have you ness central issue an pattern deception you part with authorities. exhibited (c) Trantino’s Actions on Parole in New York denying In June parole, its 1999 decision the Parole Board quoted portions 25, May hearing from of Trantino’s before York parole the New State Parole Board that resulted in his from prison in New York in June The 1961. Board observed that authority “would faith paroling Trantino reward the the New York placed you by returning committing burglaries, using in to and narcotics, abusing associating alcohol and with criminals wanted (including harboring individuals), ultimately for murder those Lodi, slaughtering police Angel Lounge two officers in the New 25, 1963.” Jersey August on testimony

In his before Board June Trantino acknowledged parole that on to report while New York he failed required, quit job, living as had his was an unauthorized during The period address. Board also noted this consorting with known criminals had on one occasion parole concerning directed his wife to lie his to officer his where- testimony Based revealing abouts. on that record Trantino’s obligations parole breach of to New York from authorities to the Parole Board concluded Trantino’s conduct during period justifying also reflected a candor lack of denial parole: It is clear based on a New York not your records, review did follow parole you paroling conditions on New York addition parole you by authorities. placed resorting to criminal with on behavior known criminal associates while parole, hiding records indicate lied to officials in New York were when you you Cassarino, Falco and both wanted for to the in Lodi. murder murder, prior paroling York Parole Board also notes statements to New your authority prior through in 1961 on release failure to follow your subsequent your paroling the New as this commitment York reflected earlier in notice authority, to. of decision.

(d) Payroll Robbery February Account attempt The Parole Board also concluded that Trantino’s robbery understate the of a he violent nature committed New supported York in lack of 1956 reflected a candor that denial of 148 denying parole described Board’s June 1999 decision robbery:

the circumstances of George Fernandez, co-defendant, and a 16, 1956,you Records indicate February DeVito, and stole assistant, a dental Carmella accosted old twenty-one year $500.00 at. indicate from office Ms. DeVito worked Records the dental payroll money codefendant, your when DeVito and co-defendant you your Ms. approached then Ms. DeVito over Ms. and mouth. You eyes pulled hands DeVito’s placed struggled was Ms. DeVito and down and located a her envelope pocket. payroll against tile then fell on the a wall. Ms. DeVito and co-defendant your pushed up Ms. then co-defendant released her. floor. DeVito screamed and and you your and for offense You and co-defendant would be arrested this your subsequently committing burglaries this would admit to twenty-five prior co-defendant your burglaries assault, As a result of the incident several your company. and later from Ms. DeVito a black and suffered somatic pains, received bruises eye, nightmares a of this You later be lack of and as result incident. would sleep grand degree degree degree first indicted first second robbery, larceny bargain, given were a five to assault. On as the result of a 18, 1956, plea you June degree ten sentence for second year robbery. 761.] A.2d [Trantino V, 752 supra, N.J.Super. Consovoy hearing questioned At its June Chairman robbery a crime. was violent Trantino about whether right, going if I not MR. Now I am tell me am CONSOVOY: paraphrase, snatching accurate that this was a of a fair, or payroll? MR. TRANTINO: Yes. From

MR. CONSOVOY: a female?

MR. TRANTINO: Yes. going Who to or bank this was an

MR. was from the envelope CONSOVOY: cash? MR. TRANTINO: Yes. George

MR. Your was Fernandez in this situation? partner CONSOVOY: MR. TRANTINO: Yes.

MR. And that this not a violent you CONSOVOY: said was crime. repeatedly [sic] That a but in it as an [sic] crime, MR. TRANTINO: violent role is my guilty snatching, I was as the who did there was but accomplice, person no [sic] weapons. Right. MR. CONSOVOY: got

MR. no hurt. TRANTINO: Or one You [sic] MR. CONSOVOY: are sure? got no Yes,

MR. hurt. absolutely, TRANTINO: one injured? MR. No CONSOVOY: one just snatching. it was No, MR. TRANTINO: The woman —to the best of my adjoining it was offices, dental dental offices or doctor recollection, offices, this woman for all of waited, the offices. And we picked up payrolls George George she went into the snatched it and we ran. hallway —when MR. And clear that’s how that CONSOVOY: you’re very happened? I best, MR. TRANTINO: To the mean— have MR. CONSOVOY: And been consistent about that. you very MR. Yeah. TRANTINO:

MR. And have that was always CONSOVOY: maintained not crime of you violence or the alternative weren’t violent. you I that MR. TRANTINO: ... in context.

During Consovoy hearing that same excerpts read to Trantino report pre-sentence relating robbery. from the to In the 1956 report complainant acknowledged that the that Trantino’s accom- Fernandez, plice, George her restrained while Trantino removed envelope containing payroll complain- a pocket. an from her The acknowledged struggling being ant then with Fernandez and against pushed falling a wall and to the floor with on Fernandez top pre-sentence of The report her. included statements the parole probation complainant that officer “the advises she suffered eye being a black and received black and blue bruises caused being against thrown the wall to the floor.” stated Trantino that this was the first time he had been the victim had informed been injured. Consovoy replied: pre-sentence report.” “Well it’s in the day responded: I “Until this hadn’t heard it.”

The apparently prior Parole Board determined that Trantino’s robbery to the of failure disclose that victim the 1956 sustained injuries supported of of reflected lack candor denial The Board stated: mitigated

Your accounts to Board in the you Members which violence previous Page through Page in on 222 of involved this offense is detailed the June hearing As in the official accounts of this offense, reflected transcript. offense violent in Board nature and of Parole have opinion you mitigated Page Page extent of violence this act. As discussed on 10 and of notice of decision. (e) First in 1963 Domestic Abuse Trantino’s Wife concluding that Trantino’s “failure to address to addition you engage led counseling the psychological issues separate ground for your first wife” was violence with domestic parole, Parole Board also found that Trantino’s denial of constituted of his assaults Helene minimization the extent example of candor with the Board. another lack “minimized” the 1963 abuse of Trantino denied that he had ever Helene, wife, expert, as Trantino’s Dr. Rosenfeld had first her, which reported. He admitted that he had abused he was remorseful, many during years now and which he had addressed counseling. following colloquy at the occurred Board’s 4, 1999 hearing: June interviews,

THE about the CHAIRMAN: In some of talk fact your you early hit had her. you MR. TRANTINO: Yeah. Hearing,

THE off charts for after CHAIRMAN: It disappeared years. hearing, hearing gone. talking [a after it’s When former you’re Rachel — Member] Board MR. TRANTINO: Yes. brought it

THE up. CHAIRMAN: —you (Inaudible). MR. GOMEZ: (inaudible). just bring

THE I She didn’t it because she up CHAIRMAN: Yeah. bring bring no context in it. You had to it And I’m had which up. maybe wrong, brought got brought I she it did. it think Either maybe up. you way, psychologists appearing now it’s in a read and of because up, reports, couple and ask how often —how—the domestic violence they and transcripts, questions, thought reading it’s a I me, it, to new issue. never about hadn’t issue, my —to I it, heard about hadn’t read the stuff. should so let’s talk about have, Maybe something, news, because to me it’s not old or that, been—it’s obviously years but how often did hit wife? you your actually MR. I TRANTINO: I —I didn’t hit her but did raise hands to her my frequently, on number of that I it was but one time is too occasions, often, a wouldn’t say three times. or four Maybe many. looking THE been with back, you’ve CHAIRMAN: Now tell involved me— counseling A.A., and did hit her? Why you why? MR. At I was I said and life, before, TRANTINO: that time as my confused, (inaudible), I can no answer for but I was confused and way my there’s behaviors (inaudible). I control, I’m to control —felt of and able out and reacted impulsive, just young girl.

to her. back I I— now, She was sweet I look at that feel like I —I hit a child. going going THE I was CHAIRMAN: was I almost it’s like know, say you you— teenage girl. hit a teenage girl. It MR. TRANTINO: was a THE CHAIRMAN: Yeah. something

MR. I mean, TRANTINO: And this still deal with. I was able —I tell her I but as least is not I that, know, was for sorry, you me, adequate. just change mean, I —I can’t what were, did, and what you way you you — just I did I was, and the I feel so for what I to her. was way sorry did She girl, intelligent such an innocent very sweet, person. nice She very, really just just liked I back at it’s me, know, and look that and like —it’s like of you part just all of at that time. no I behaviors excuse. can’t come my They up —there’s with an excuse that. family; Trantino related that he never saw violence in his he explanation why saw his father hit mother. His never he hit feelings powerlessness Helene was that he took out his her. on adequate, just Trantino “I was stated: not unable to control life, myself, capable coping my totally not with the stresses in her, I person.” unable ... took it out on on a weaker agree Trantino not did with Rosenfeld that he “minimized” the abuse, but maintained that Helene have him would not called Consovoy abusive. stated: thought You

THE CHAIRMAN: don’t think then she that it was bad. particularly thought think MR. Yeah. I don’t she would have that then. was TRANTINO: She just just a child. We never those And you said, heard words. like domestic (inaudible) (inaudible) older, never heard of that. And now she violence, you just it’s on it’s know, abusive because not —as it’s not the hands you somebody, (inaudible), cheating, yelling, it’s of that. I all believe disrespect, those are as and are well, violence —acts violence abusive. I abusive, THE CHAIRMAN: When said don’t think she call me you would you meant back then. MR. Back then, TRANTINO: yeah. 9,1999, again by Consovoy June

When issue raised disputed again minimizing the abuse oc- domestic curred: [Y]ou not

MR. said the other the word minimized is CONSOVOY: day something feel is statements. you your appropriate know meant so by minimize, I don’t think I —I don’t what he ME. TRANTINO: her, I to what I did to I mean, I don’t think I I think back hard, that’s but do. beating. a I mean, hit I beat her. And even her, slap [minimization is] to what [Y]ou don’t feel that appropriate you MR. CONSOVOY: telling [Rosenfeld]? were feeling what is about my At least not what intentions or my MR. TRANTINO: that____ You I her or her? said open MR. And asked did you punch slap CONSOVOY: you hand. knowledge I MR. I —to don’t remember ever my TRANTINO: the best punching her. MR. Okay. CONSOVOY: just as hard as

MR. A smack could be TRANTINO: punch. I that. Oh, MR. understand CONSOVOY: if I I think about I smacked a MR. That’s when it would say TRANTINO: why beating. get is no So, um, would I there mean, way woman that’s —that be a that. around MR. And it’s CONSOVOY: violent.

MR. It’s violent, TRANTINO: yeah. parole York file contained a officer’s

Trantino’s New homicides, report, soon Lodi that referred to an prepared after the wife: interview with first throughout [sic] The wife to the writer on 8-28-63 that most parolee’s reported got along together. marriage, she However, reported their well they approxi- ago, 2¡é several week. She months stuck her times mately parolee per reported make at that that the and she would and then quarrel time parolee up. subject hit her was that no wife felt that the reason would he why parolee’s longer women. loved her and interested other Consovoy hearing At the Board Parole Chairman June physical about Trantino’s abuse of characterized information response, respondent’s first a “new” counsel wife as issue. possessed twenty Appellate Division quotes length brief also at from his testimony at a parole hearing 1995 Adult Panel in the course of which acknowledged Trantino physically that he had on occasion during abused his first period prior wife to the Lodi murders. Nevertheless, the Parole Board concluded that Trantino’s lack of concerning physical candor the extent of his abuse of his first wife was an supporting parole: additional factor denial of Records from New York indicate the extent of abuse first wife your suffered the months to the murders in Lodi. When about prior questioned your relationship

with first wife Dr. your Rosenfeld, claimed assaulted wife on you you two your beating occasions but stated it wasn’t a think you didn’t she would call you you abusive. Dr. minimizing Rosenfeld noted his that to be report you appeared extent of violence towards wife. It is the your Parole Board’s that opinion you have not been candid with fully authorities about domestic violence to your your mitigated first wife and have the extent of violence showed towards her. you (f) Trantino’s Lack Concerning Candor on His Be- Efforts to Remove a New York Parole Detainer Issued

half Respect New York Parole Dating Violations Back to 9, 1999 At hearing the June Consovoy Chairman asked Trantino if he was aware that in 1974 attorney a New York named Sanford attempted Katz had to remove the New York detainer so that Trantino could attain full minimum Jersey. status in New Tranti any knowledge no denied concerning Katz’s efforts on his behalf. acknowledged attorney He that an Fogel, named Jeff who then Trantino, representing going had mentioned that “he was detainer],” something do [about the but stated that “I never saw the letter.”

In denying parole, its June 1999 decision the Parole Board concluded that candidly Trantino had not testified before the Board on that issue: hearing

You 9, 1999 June explained your were not aware you your attorneys attempting were to have New York’s warrant removed, the fact that parole despite letters indicate did retain a Mr. Katz to you in this matter. represent you being regarding sum, the Parole Board believes were less than candid you this issue. this was a miscommunication between so Perhaps you your attorney stating therefore if can an Board affidavit from Mr. Katz you provide his August in which he claims he 30, 1974, authorities dated letter to New York parole our on this issue. the Board will reconsider position was false was retained by you, attorneys Jeff 1999 decision Subsequent to the Board’s June to the Parole Katz submitted certifications Fogel and Sanford requested assis- that he Katz’s Fogel’s certification stated Board. familiarity with New York own lack of tance because his informing that Katz was law, and that he did not recall certification the New York detainer. Katz’s attempting to remove fee, Fogel and never sent Trantino he without stated that assisted York authorities. copies correspondence with New were-unsuccessful, but that the New his efforts Katz added that years voluntarily removed the detainer two York officials later. a Lack Candor

(g) Parole Board Also from Inferred of During Interview with His Re- Assertion His Rosenfeld, Psychologist, Barry Dr. That “He Took tained Many He Held as a Youth” Pride in the Part-time Jobs Steadily Age Seven until and That He ‘Worked Had from ” Approximately Fourteen Years Old. denying “Your em parole, decision the Board observed its Page —You claim on 10 of Dr. ployment during your childhood steady employment report you maintained from Rosenfeld’s Kings County you age age fourteen. the time were seven However, Reports otherwise.” Trantino’s com Probation indicate readily York ment Dr. Rosenfeld was reconcilable with New merely employment probation report noted that Trantino’s . age “spotty” record was after the of sixteen Psychological Counseling Failure to Address in 3. Trantino’s Engage the Issues That Led Him to in Domestic Violence with His First Wife. previously the evidence

The Court has summarized wife, relating by first record to domestic abuse Trantino of his Helene, finding that Tranti- in connection with the Parole Board’s 150-53, testimony Supra at no’s about that issue was not candid. denying parole, A.2d 962-65. In its decision the Parole Board also observed that counseling Trantino’s “lack of in the area disturbing,” relying primarily domestic violence is on the follow ing colloquy that occurred between Board member 9, 1999 Washington at hearing: the June MS. WASHINGTON: Mr. Trantino, do understand the violence you cycle regards to domestic have violence, studied that at all? you MR. TRANTINO: No. counseling

MS. WASHINGTON: Or had on that at all? any MR. TRANTINO: I understand little bit about it.

MS. WASHINGTON: Could that? you explain MR. TRANTINO: the counselors talk about it in Many us, because particular most of the men who were incarcerated have been violent with women. MS. WASHINGTON: Can tell us what you is, of violence explain-can you cycle can it? you explain thing MR. INo, TRANTINO: don’t know what that is. particular counseling MS. WASHINGTON: No on the of violence? cycle understanding, MR. TRANTINO: I know don’t what that is. If specifically my I — understanding if I understand this I don’t know if it’s a correct correctly, this, groups is the I have heard of violence in our way cycle women explained counselors who want us to understand it is that our fathers did we this, this, did our children would do this. No, MS. WASHINGTON: that’s not the of violence. cycle MR. TRANTINO: That’s not it? 7The definition Trantino, while not the one used most often provided by abuse, clinical in the area of is an definition that is used specialists acceptable organizations working individuals and with children in domestic violence homes. (visited 2000) Program

See Women's Shelter San Luis Dec. Obispo County ("Stopping the of Vio- <http://www.callamer.com/~wsp/children.htm> Cycle children learn what at lence____Unfortunately, they experience home____Boys girls grow who in violent homes are more to these behaviors up likely cany relationships.”). Washington into their own The definition Ms. apparently looking for is: Battering does not occur but rather in a constantly, cycle. cycle building battering consists of three the tension the acute phases: phase, (sometimes loving incident, kindness, contrite, and the behavior referred to stage.) as the "honeymoon” (visited 2000)

Domestic-Violence.net Dec. <http://www.actabuse.com/ >. cycleviolence.html No. MS. WASHINGTON: TRANTINO: Okay.

MR. just counseling at all to out if had I wanted find you any MS. WASHINGTON: of violence. cycle psychologi- finding had not received on its that Trantino Based counseling prison in about the causes of his abuse of his cal while wife, substantially likely that it was first the Board determined parole: a crime if released on that he would commit engaged in the months to criminal offense you Records indicate prior your present at both and in the manner described abuse, you your domestic physically hearing. was so severe that first wife moved out your The abuse your preceding in all of incarcera- Yet, in the weeks the murder. your years apartment counseling, Dr. this issue. as fact, tion and have never you seriously explored mitigated wife. Without have abuse towards first notes, your Rosenfeld you your psychological counseling exploring and the causes of the aforemen- this issue it towards first the Parole Board is wife, opinion tioned abuse your commit a crime if released on would likely you substantially Parole Plan 4. Lack Suitable 9, 1999 hearings 4 and members of the Parole At the June June questioned parole plan. current Tranti Board Trantino about his acknowledged plan than no that his current was more uncertain Charlee, prior parole plans because of his divorce in 1997 from his sought testified that Charlee the divorce second wife. Trantino inability cope continued incarceration of her with his because her fear discomfort about the media attention focused on Trantino. He testified that he and Charlee “still love each other divorced,” though willing even we’re and that she remained to let Pennsylvania him work for her in if he was released. He stated that, divorce, same, parole plan other than the remained the Camden, say Cherry I get apartment, “to live in an Hill. would wife, business, working my my going I would be wife had be Rutgers, getting counseling, going I be to AA would be meetings.” Acknowledging possible difficulty securing per Pennsylvania, to work in Trantino stated that he would mission floors,” toilets,” McDonalds,” “scrub the “clean or work “work ability library expressed in a or He confidence in his bookstore. work, get anticipated receiving assistance from his AA sister, Camden, Charlee, attorney, his his sponsor lived who he would brother-in-law, For recreation policeman. a retired read, paint. write and Trantino had a suitable Consovoy disagreed that

Chairman decision, In its a “notion.” describing it instead as parole plan, parole plan, expressed concern over Trantino’s Board the Parole concerned with generally “would be noting the Board inmate, incarcerated you, who has been any such as parole plan of system, life, support a regards little of adult has most of his life.” steady employment in his entire not had has inadequate parole plan constituted concluding In that Trantino’s observed: denying parole, the Board ground for an additional of future and the of likelihood of a sufficient impact Your lack parole plan light full clear lack of to Parole Board in your is also a concern recidivism how understanding face if you of criticism you may paroled of the intensity would be of the Parole Board you to that. It is the may position respond This would be criticized if were released you scrutinized and intensely to heightened were to a plan, pursuant the fact that if you paroled placement Bergen be would paroled of Corrections policy you possibly the Department underlying commitment. criminal the county your County, items clear for the record like to make two Parole Board also would regarding it is not the First, suitability. responsibility parole plan your to him or her, parole plan that an inmate has available Board to ensure Parole it not the Therefore, of future criminal behavior. that will reduce the likelihood is suitable to ensure your parole plan of the Parole Board responsibility Parole Board can only behavior. The the likelihood of future criminal reduce of the Parole inmate in the context submitted evaluate the plan parole assessing legal case your your parole suitability. Board’s standards if are of future recidivism you concerns terms of likelihood raises serious plan released on parole. hearings, are now divorced you in contrast to several Second, your past of your support system who in the central Charlee, part from wife past your Charlee, with current relationship You to explain your if attempted paroled. nothing with Charlee did current relationship in all candor explanation your your regarding assuage concerns your parole plan. the Board’s Psychological 5. Trantino’s Profile psychological numerous includes before this Court The record eligible when he first became Trantino since 1979 evaluations parole majority for and the vast of those evaluations reflect a positive suitability parole. Among assessment of Trantino’s for 1995, 1996, positive psychological those evaluations are and 1997 by Ferguson, evaluations of Trantino Dr. Glenn Parole Board 9, 1999 2 psychologist testimony staff whose and June June before primary the Board constituted the evidence on which the Board decision, denying parole. gave relied in In its the Parole Board weight” psychological “no to the November 1998 evaluation of by Dr. by Michael Weiner who was retained the Attor ney report General and the basis of whose Trantino was removed from Talbot Hall and transferred to South Woods Prison. Although expressly Dr. Weiner found Trantino’s likelihood of “low,” criminal recidivism was the Board determined that his report was not it useful because did not focus on the central issue of provided reports recidivism and because Weiner not with parole concerning from New York authorities Trantino’s back ground prior to the Lodi murders. addition,

In weight” January the Board also accorded “no to the psychological by expert, evaluation of Trantino his own Dr. Barry Rosenfeld, who from 1994 to 1999 served as the senior psychologist Supreme forensic of the “New York Criminal and Courts” in affiliation Hospital. with Bellevue Dr. Rosenfeld con- majority predictive cluded that suggest “the of factors that Mr. capable successfully adjusting Trantino will be of to and present high does not re-offending.” risk of Dr. Rosenfeld’s report eighty-seven separate listed sources of information on which he relied. The Board determined that Dr. Rosenfeld’s report given and evaluation weight should be “no in this (1) determination” given very because Dr. Rosenfeld was “a (2) review,” limited amount of material Dr. Rosenfeld “did little nothing challenge veracity or of statements made (3) inmate,” and hearings Trantino “himself claimed at his ... him, a number of Dr. statements Rosenfeld attributed to he did not make.” 2 and June primary reliance on the June to its

In addition also relied to a limited testimony Ferguson, Dr. the Board O’Sullivan, “psychology consul- testimony Mark on the extent its After issuance of June employed the Board. tant” interviews conducted additional denying parole, the Board decision Berrill, O’Sullivan, Dr. 9,1999 Dr. Naftali with 8 and on November purpose Papparozzi Timothy Dr. Mario Brennan supplemental eligibility term. its establishing Trantino’s future limited extent on Board relies to a the Parole brief to this Court Berrill, testimony of Drs. O’Sullivan post-parole decision testimony Bren- of Drs. briefly the November 1999 refers we first completeness, Papparozzi. In the interest nan on whom the testimony of of the witnesses all summarize psychological Trantino’s denying parole in based on relied Board profile. Parole

A. Evidence Unfavorable (i) June and June Ferguson Testimony Dr. Glenn — and a psychologist Board’s chief Ferguson, the Parole Dr. psychology Ph.D. in received his employee since Board hearing officer from a Ferguson served as Dr. had 1997. evaluations psychological inmate performed to 1995 and had beginning in 1995. Board for the history of 2, 1999 by reviewing the began interview He his June that inmate. He stated as an psychological evaluations evaluations, “in fourteen to be he considered fifty-six of Trantino’s relatively brief evaluations. forty-two to be depth evaluations” evaluations, four he determined “in-depth” the fourteen Of were indecisive parole and the balance clearly supportive of were thirty-five out acknowledged parole. He supportive not or supportive of forty-two evaluations were remaining shorter in those the difference Ferguson attributed parole for Trantino. very rapport very good ability “a to establish to Trantino’s results quickly.” Ferguson

Dr. psychological testing observed that Trantino’s thorough in-depth Talbot Hall in 1998 was “one of the more past evaluations ... done the recent on Mr. Dr. Trantino.” Ferguson questioned by Consovoy Board Chairman about (MCM-III) Inventory-III results of a Millon Clinical Multiaxial performed test of Ferguson at Talbot Hall. Dr. acknowl edged although symptoms the test results revealed of three (narcissistic, personality distinct disorders antisocial and border line), high enough none of the scores could be considered to be “clinically significant.” Ferguson frequently stated that Trantino diagnosed had been with personality narcissistic and antisocial disorders, prior but noted that psychological none of the evalua possess tions had considered Trantino personality a borderline Ferguson disorder. opinion observed that Trantino “meets the criteria for all three [disorders].”

Ferguson aspects personali- observed that certain of Trantino’s ty violent,” “potentially tend to make him noting that it was unpredictable how Trantino would act in certain situations. Fer- guson stated: very “Because he doesn’t have a clear understand- is, ing really of who he very and he hasn’t done thorough self- examination, he’s not type even real clear on what of situations might present problems himfor in the might future. And that set him off.” Ferguson explained that, isolation,

Dr. to the Board Tranti- personality no’s narcissistic significant disorder was not a cause explained for concern. He definitely that “narcissism prob- again, lem. But plenty people there’s out there with narcissistic personality anybody disorders that aren’t a threat to else. As long they get egos as their they get fed and everything way want, they you know, However, goes life on.” Ferguson’s view combination of person- Trantino’s narcissism and a borderline ality disorder unpredictable could lead to potentially and violent situations: dangerous Mr. [is] Trantino a particularly individual. Because of his unpredictabil- unwillingness and his to

ity examine clearly in the future. potential problems That, going know, makes it almost him you for to avoid impossible situations where he is going trigger ego, that are to to his blows to his narcissism to be faced with blows feelings unworthiness, and, know, loneliness, you and and of, know, you emptiness, wanting to fill those. setting [of] controls, a lot external in a where he doesn’t have If he’s community behaviors, for know, strict serious know, consequences you supervision, you going an awful lot it’s to take corner, know, a store or bar on the you there’s liquor drinking. walk into that bar and sit down and start of effort on his to not to part guy walks in and the next crossed, know, And that hurdle’s you once recognizes “What the And, know, him that’s that killer.” “Oh, you and says, cop pointing doing gets face starts his know, in his And, hell are here?” you you big finger pushing buttons, say I don’t think it takes leap his for violence. there is potential successfully overcome According Ferguson, Trantino could not he acknowl- personality disorders until the risks inherent the treat- edged and made a commitment to seek their existence personality.” necessary change parts of his ment “to those findings expert, Ferguson disputed the Dr. also inexperi- of bias and Ferguson accused Rosenfeld Dr. Rosenfeld. an ence, previously evaluated stating that Rosenfeld had not Ferguson and the Board asserted parole purposes. inmate for and incor- report was based unsubstantiated that Rosenfeld’s lawyer, solely by and his provided rect information objective data on sought he had not out that Rosenfeld admitted his own. Psychopathy scoring the

Ferguson Rosenfeld of also accused (PCL-R) incorrectly, Ferguson which de- test Checklist-Revised report. Dr. Rosenfeld’s “biggest problem” with as his scribed leading tests Ferguson test is “one testified that PCL-R making predictions psychologists for being used ... forensic twenty explained that the test contains future violence.” He behavior, each personality and with questions about an inmate’s (behavioral does “0” trait not question being scored as either extent), (behavioral “2” or applies to a certain apply), “1” trait (behavioral Ferguson, According a score applies). trait psychopathy, also correlates thirty is indicative of which or above high recidivism. with a risk of

Ferguson testified that when he administered the PCL-R to August 1998, nineteen, Trantino in Trantino received a but that receiving after probation the New York Ferguson documents re- 24, scored Trantino psychopathic as which is not in range (30-40), and average reflects the Ferguson score of most inmates. reported initially that Talbot Hall scored Trantino a but after receiving updated Ferguson information revised 26. “always admitted there judgement are some scoring calls” in psychological tests.

Ferguson noted that Dr. Rosenfeld scored Trantino at 14.7 on PCL-R, a score he characterized very as “indicative of a low functioning, level of psychopathy.” antisocial- let Ferguson alone erroneously stated that Rosenfeld scored Trantino on the basis ability his current to function rather than on the basis of Tranti- no’s experience “lifetime” contemplated by as scoring the PCL-R manual.

Ferguson explained also change to the Board opinion his in concerning evaluation, Trantino since his 1995 attributing his current experience views his enhanced psychologist, as a newly- acquired parole authorities, information from the New York changes support system. Trantino’s Ferguson explained Trantino had “an support system” extensive Camden, “that developed through he his contacts at the Riverfront Prison,” wife, Charlee, including State whom Trantino met prison, furlough. and married while Ferguson noted that in twenty years after almost marriage, Trantino and Charlee Ferguson divorced. concluded that support network parole plan had-gone “by wayside.” Concerning problems, Ferguson Trantino’s substance abuse not- ed on-going Trantino’s extensive and pro- involvement in various grams including Anonymous, Alcoholics but observed that state- Trantino, ments such as confidence that he would never relapse, revealed a failure to understand Anony- [Alcoholics “the mous] model of substance abuse and alcohol treatment.” “more inten- that Trantino receive Ferguson recommended

Dr. issues,” would which personality to deal with sive treatment then long period [and] of time therapist him “for a require a to see response to a In environment.” him in a less restrictive to see long take —“three how it would question about Board member’s function,” Dr. really out if he can years, find years, five freedom depend the “level of would Ferguson replied that it noting that “within two halfway house” supervision in a and ... options just all conceivable years you can come across about might he see.” and outcomes that Ferguson, Con- Dr. Chairman concluding interview with put say we would never be fair to sovoy that “it would noted give we want.” anyone to us an evaluation any pressure on interview, Ferguson Dr. which Trantino’s June After Fergu- Ferguson. Dr. Dr. the Board re-interviewed present, was his assessment testimony had confirmed that Trantino’s son stated agreed a Board parole. He with unfitness for of Trantino’s write another book about Trantino’s desire to member that empathy for the and lack crime evidenced his narcissism of self- reemphasized Trantino’s lack He of the victims. families Finally, system. support of his and the deterioration awareness judging risk that “in Consovoy’s characterization agreed he with years thirty-five in the progress” much hasn’t made [Trantino] the crime. since interview, Chairman of the June the conclusion

At say fair to “it would be Ferguson whether Consovoy Dr. asked [of recidi- substantial likelihood legal standard of that under the Fergu- Dr. legitimate concerns.” has some that this Board vism] than a legal question more like a reply sounds “[i]t son’s question.” psychological 9,1999

(ii) Mark O’Sullivan —November by employed consultant psychology ais Mr. O’Sullivan revealed qualifications are not background and Parole Board. His adden- in the confidential by except for statement the record dum to the Board’s decision that “Mr. O’Sullivan has been a Psychology member of the Parole Board’s Unit for a number of years pre-parole psychological and has conducted hundreds right.” evaluations in his own 9, 1999,

On November five after months the Parole Board’s denying parole, Consovoy decision Trantino Chairman interviewed concerning O’Sullivan a PCL-R test that he administered to prior to the Board’s decision. O’Sullivan testified prior administering the test he reviewed “some 40-odd years’ decisions, psychological [reports],” worth of court tran- scripts parole hearings, presentations.” and “media O’Sullivan test, scored substantially higher Trantino at 31 on the a score than by that received Trantino when the same test was administered at Hall, Ferguson, Talbot twice Dr. and once Dr. Rosenfeld. test, scoring Based on his expressed O’Sullivan the view “prototypical that Trantino psychopath,” and that he consid- poor ered him a risk for

(in) 9, 1999 Dr. Naftali Berrill —November Several months after the Parole Board issued its decision denying parole, Consovoy Chairman and Mark O’Sullivan Berrill, interviewed Dr. Berrill on November 1999. Dr. Board-certified psychologist, forensic had never met nor inter- viewed Trantino but had reviewed materials from his file including psychological reports, tests and hearings Parole Board prior evaluations. He noted that psychological evalua- tions tended to characterize possessing Trantino as narcissistic disorders, personality and antisocial but noted that “I don’t think anyone gone say, has as far example, as to that there was a personality form of borderline disorder....” When asked about twenty-five the relevance of years of infraction-free incarceration, remarked, Berrill impressive.... “it’s It’s interest- ing. noteworthy. It is It capacity demonstrates this man’s level____ perform this behavior some He’s not a total loose really cannon in doing.” what he’s just Berrill added: “I think it’s drugs picture, ... not in evident that when and alcohol are behavior, capable good, I he’s of formidable which is mean that’s However, continued, “absolutely” fine.” Berrill it does not mean world____ way that there has been in the a “shift he looks speaks way, shape personality It in no form or to the core structure.” Berrill observed that a realistic assessment of Tranti- only possible unsupervised setting. no is in an you findings: Berrill summarized his “There is no reason for any change way think that there’s substantive that that man devices, entirely looks at himself or ... if left to his own it’s Moreover, may possible, drugs again.” that he well drink and use treatment, treatment, opined, genuine no he “there’s been the real substantive treatment.”

(iv) Timothy Brennan 8, 1999, subsequent On November to the Board’s deci- sion, Consovoy telephone Chairman conducted a interview with Dr. Brennan. Brennan observed research the area of risk prior history probably assessment demonstrates that criminal important predicting major the most factor in future risk. Other length history, factors are criminal seriousness of current abuse, offense, and substance behavior itself sel- “[institutional dom is seen our literature or even our clinical work as the major main factor.” He stated there are about ten factors that use, most institutions and institutional behavior is not one. Bren- explained “in a nan that institutional behavior is constrained and environment,” supervised in the and thus unreflective behavior community.

(v) 8,1999 Papparozzi Dr. Mario —-November Subsequent denying parole, to the Board’s decision Chairman Consovoy telephone on November 1999 conducted interview Papparozzi, year Dr. late confirmed with Mario who last as the new Chairman of the Parole Board. Dr. State Senate years Papparozzi, twenty-six Department served for in the of who community working programs, also Corrections Jersey professor College an at the of New served as assistant College’s Policy as the associate director Criminal Justice Papparozzi Center. Dr. had not interviewed Trantino nor did he testify psychological that he had reviewed records Trantino’s evaluations. The focus of his interview concerned “the relation long-term between infraction-free or trouble-free institutional ad- justment and behavior on the street —once out.” “just

Papparozzi personal experience, stated that from because time, period someone is infraction-free an institution for a one not should conclude that is reason to believe that once they released to streets that also remain infraction-free or pro-social remain in a mode.” He noted that inmates are con- watched, out, stantly being likely prison thus are less to act good rewards behavior.

Papparozzi personal then asserted that his observations are supported by prediction. the academic literature on risk He that, literature, according important point” stated to the the “most responsible to understand is that “no one factor can be held ... predicting for the likelihood of an outcome once released to the fact, adjustment” top street.” In “institutional is not even outcomes,” accounting three “that although items are it does portion account “for a outcome terms of an actuarial risk assessment.” “virtually The witness impossible admitted that it is ... ”

predict ... particular person going thing. which to do bad models, The risk which are percent” [sic] “nowhere near 80 or 90 accurate, only predict percentage inmates that will recidi- vate, not which inmates will do so.

B. Evidence Favorable to Parole (i) Psychological Ferguson Prior Evaluations Dr. Glenn Ferguson, Dr. testimony primar- on whose June 1999 the Board ily denying parole psychological relied in based August profile, August Trantino in 1995 and also had evaluated February 1996. and had been interviewed the Board highly Ferguson’s August supportive 1995 evaluation was of Dr. report Ferguson Tran- parole for Trantino. Dr. reviewed change” background, “pattern tino’s his of behavioral while consistently diagnosed prison, had been with an and noted he Trantino, personality Ferguson stated that antisocial disorder. although shootings, “accepts recall the actual full re- unable to murders, light eyewitness testimony sponsibility for both holding gun prior to and after the his recollection of both “received a score of offense.” He observed PASS mid-range places high which him in the end of the of PASS 62% likely recipients equally who are viewed as to succeed and fail on higher scores of 65% or are viewed as clear cut PASS outcomes, parole or indicators of successful while scores 35% parole Ferguson’s lower are viewed as indicators of failures.” report strong parole, for concluded with a recommendation necessarily halfway preferably preceded but not transfer to a house: more as a staff member in the than as an Thomas functions

Presently, prison which inmate. He has a well rounded and network developed reputable support manage living the increased stress level of should enable Thomas independent high and' education, He has a level of motivation for continued therapy optimally. including attainable, Elis realistic and employment. employment plans appear copyrighting in art work with wife’s and creative work technical company therapy. setting final would most aid Thomas likely A transitional release prior adjustment making of incarceration, free after thirty-two years problem of well established social but is not viewed as crucial. The combination supports, age ongoing will most lead to a successful treatment, motivation likely at this should focus on issues conflict outcome. Psychotherapy point weakening emerging in the resolution, anxiety, depression. Any possible or into substance abuse could lead disas- network evidence relapse support trous results. Board, February Ferguson In a 1996 interview with the Parole programs further institutional could benefit was asked whether point as Ferguson replied, this it’s almost overkill “[a]t Trantino. just every- programs” gotten and “he’s about far as institutional Ferguson programs.” also thing get he can as far as institutional stated: You no know, really I think the substance abuse has been addressed. there

psychopathology begin to with. disorder, I want to because say yes, As far as the don’t personality personality, holds true with Mr. Trantino. But the antisocial disorder definitely personality major thought a schizo- like, know, terms of a disorder you personality problem (inaudible) (inaudible) those— know, or disorders, syndromes, phrenia you types far as can see. those never existed as anybody opinion, although that Trantino could Ferguson’s In he believed street,” disposition appropriate the more would be “succeed on the halfway him to encounter to transfer Trantino to a house to allow day-to-day pressures, providing with continued out- while him patient treatment. Ferguson’s August report, he continued to recom- Dr. placement in parole preceded

mend for Trantino a transitional halfway He that the result of a PCL-R test a house. observed traits, personality “although they are a revealed antisocial not of suggest magnitude [Trantino] to is an imminent risk for violation, released,” parole noting if or violent recidivism percentile, suggesting at the 28th Thomas “[h]is overall score falls antisocially prison less oriented than 72% of the 1192 inmates in sample.” Ferguson the standardization concluded: negotiate If Thomas can the difficulties inherent successfully community halfway it to house one would seem reasonable believe year, community placement living given on would meet with similar success. care should be to Special parole through monitoring ensuring his unannounced urine and contin- sobriety frequent counseling ued AA Mental health should also be a condition of participation. developing maintaining coping strategies. an with on emphasis positive (ii) Barry Dr. Rosenfeld Rosenfeld, Trantino, psychologist

Dr. a forensic retained psychological January submitted a evaluation of Trantino on noted, supra, and an addendum March 1999. As at 157-58, gave weight” 764 A.2d 968 the Parole Board “no to Dr. capable Rosenfeld’s conclusion that Trantino “will be of successful- ly adjusting present high not of re- does risk offending.” present psychological Rosenfeld reviewed Trantino’s currently any condition and concluded that he did not “suffer from major personality mental disorder or disorder.” Rosenfeld con- attention, “grandiosity, ceded Trantino’s a need for and limited empathy,” but he deemed those traits to be “consistent with a personality narcissistic person- [rather] disorder than an antisocial ality disorder.” Rosenfeld,

According “perhaps important predictor” the most of the low likelihood of Trantino’s recidivism was that he scored relatively low on undoubtedly the PCL-R. The PCL-R score was noted, insightful, “overly Rosenfeld because suscep- the test is not attempts tible to psychopathy.” deliberate to mask He stated that score, strong positive low was “a indicator of adjustment parole.” successful recognized possesses Rosenfeld that Trantino several of the correspond traditional historical factors that to a likelihood of recidivism, use), delinquency (drug such as childhood young the age behavior, began at which he his criminal the fact he parole past, reoffended while on in the and a substance abuse However, history. Rosenfeld noted that such factors can never be by rehabilitation, regardless, altered or minimized and that re- supporting search those criteria do not consider inmates who have spent “thirty plus years prison.” Rosenfeld stated that there is very against little research on recidivism which Trantino can be result, compared. aAs Rosenfeld asserted that all traditional context, data, factors be including must considered clinical psychological adjustment, current and behavioral controls. Finally, acknowledged high Rosenfeld the rate of recidivism criminals, among paroled that, noting possibility violent “the of recidivism will never be He concluded that the risk eliminated.” by parole designed recidivism would be lessened conditions society, placement ease Trantino’s including transition into in a house, halfway training, outpatient psychotherapy, life-skills outpatient substance abuse treatment.

(iii) Dr. Michael Weiner noted, gave supra 764 A.2d at the Board “no As Weiner, fifty-three report expert weight” page to the of Dr. the response place by Attorney to Trantino’s retained General Hall, that Trantino’s likelihood ment in Talbot who determined Applying stringent stan recidivism “low.” a more criminal set than the “substantial likelihood” recidivism standard dard Act, with report in the 1979 Parole Dr. Weiner’s concluded forth accomplish I “has more to before the observation Trantino say, any degree certainty, that he with reasonable of medical can again.” not break the law will Psychological

C. Other Evaluations Appellate Febru- Pursuant to the of the Division entered order 4, 1999, ary required Board was to make available to Parole copies reviewed Trantino’s counsel of various documents that were Board, authorities, experts. Those the Parole and state fifty approximately psychological documents included evaluations Trantino, in previously addition to those evaluations identified only relatively opinion. Although in this number of those small reproduced printed evaluations were record submitted Court, remaining psychological all of were this evaluations Attorney provided to the we Court General’s office and part appeal. those in this treat evaluations as record eligible consider- Because did not become only thirty-five closely ation until we have examined psychological evaluations from 1979 to note that the date. We Board, denying parole, appear in its Parole decision does not any thirty- take into account the conclusions reached in of those evaluations, psychological although five their decision makes refer- findings concerning personality to in two ence disorders of those evaluations. evaluations, thirty-five psychological span- review of

Our those ning period eight from reveals that parole eligibility focused evaluations not on but rather on Tranti- suitability status, no’s for para-professional place- full-minimum system, ment within halfway placement, the correctional or house and all such supportive. evaluations were favorable and twenty-seven psychological

Of the evaluations that focused on suitability parole, twenty-three for were supportive, favorable and supportive, one fairly was not and three could be described as guarded. Among comprehensive the more evaluations McNiel, record are two Dr. principal Kenneth L. clinical psychologist Diagnostic at the Avenel and Treatment Center. June 1991 Dr. McNiel observed: Regarding changes during this personal incarceration, several factors period suggest significant progress that Mr. managing Trantino had indeed made manifesting acting emotional conflicts without out behaviors. impulsive, First, he has maintained for and it is sobriety many years, undeniable that his extensive drag dangerous and alcohol history abuse contributed to his overall reckless and young as a adult. his lifestyle Second, institutional record indicates clearly steady adjustment in institutional with improvement decreased conflicts with authority figures psychological over time. Third, review of evaluations also previous suggests functioning in emotional steady over time. improvement Fourth, Mr. longer Trantino has achieved new for clearly himself, no the wild identity careless outlaw, but now the inmate and author. Mr. respected published Finally, Trantino has demonstrated some of his antisocial improvement specific aspects For an or personality. example, inability empathize appreciate viewpoints others is one common feature of antisocial and narcissistic Consis- personalities. during psychological with this, tent when about asked his first wife his first (4/15/64), evaluation Mr. Trantino by Joseph Fahey bitterness towards expressed visiting acknowledgment her not his him, that he despite had abused her and during cheated on her. When asked a similar Mr. question evaluation, present was a kid, “She reported, old. She was scared to death. I only years treated her so it only terrible, makes sense to me that she wouldn’t visit. At that thinking just I time, wasn’t her, about I was really self-absorbed and hurt.” recognize Mr. ongoing Furthermore, Trantino is better able to inadequacies experiencing than more

problems previously, emotional appears capable satisfaction without the use of artificial stimulants or extreme stimulation. evaluation, In October after a second Dr. McNiel ob- served: As noted in the Mr. Trantino’s previous evaluation, fundamental is of a personality unchanged throughout narcissistic and antisocial and this will remain type, likely his life. as is However, the case with similar usually there personality structures, comes a time the middle to late adulthood when the antisocial seems personality leaving energetic, to “burn a less out”, less It individual. would impulsive appear begun

that this has for Mr. process Trantino.' happen 172 it release,

As to this would critical factors what means community appear including an initial of close evaluation, remain similar to the previous period monitoring treatment, for substance mental health abuse, to include supervision will How Mr. Trantino ultimate- and vocational and social as needed. well support thus fare stresses in the future is not easily predicted, in life ly specific response monitoring it that the systems would availability appropriate support appear though be would most sense. As to whether r-elease should a halfway make the seems less release, house or direct this community frankly important placement if than are and when whether treatment appropriate parole supports place granted. full release IV of Review Standard Constitution, VI, 5, 4, para. Jersey sec. The New Art. specifically judicial agency review of administrative authorizes Examiners, Appeals re 60 N.J. See In Senior determinations. Twp., v. 356, 363, (1972); Fisher Bedminster 5 N.J. A.2d 129 290 TV, (1950). supra, 534, 538-10, Trantino In 76 A.2d we set 673 determining forth should follow in the standard courts validity reviewing A of the Parole Board’s denial court must examine: (1) legislative agency’s i.e., whether the action violates or express implied policy, (2) agency did the follow the whether the record contains substantial evidence law; (3) findings agency on which the its action; based whether support applying legislative agency reaching to the erred facts, policies clearly showing not conclusion that could have been made on a the relevant reasonably

factors.

[Trantino 260.] 154N.J. at 711A.2d IV, supra, appeal prong three-part we the second of that this focus on TV, supra, essentially standard. We noted factual nature of a Parole determination that ‘“there is Board’s a sub- stantial likelihood that inmate will another if an commit crime ” released,’ obligated accordingly reviewing and that court is “ finding reasonably ‘determine whether factual [that] could have ” been reached on sufficient credible in the whole evidence record.’ Cestari, Id. v. State Parole Bd. (quoting A.2d 260 (citation 534, 547, omitted), N.J.Super. (App.Div.) 540 A.2d 1334 denied, (1988)). 111 N.J. A.2d 558 certif. previously recognized

We have that Parole Board decisions highly are discretionary “individualized appraisals.” Beckworth v. Bd., 348, 359, (1973). N.J. State Parole 62 N.J. 301 A.2d 727 Accordingly, the Board “has broad but discretionary not unlimited powers,” always and its judicially determinations “are reviewable Bd., arbitrariness.” Monks v. 238, N.J. State Parole 58 N.J. 242, (1971); 277 A.2d 193 accord In re State in Interest of Steenback, 89, 101, (1961); 34 N.J. 167 A.2d 397 In Smigelski, re 513, 527-28, (1959). 30 N.J. 1 154 A.2d IV,

Although in supra, we acknowledged “the difficulty inherent gauging parole whether a determination discretion,” constitutes an 25, abuse of 260, 154 N.J. at 711 A.2d emphasized judicial we that the review of Parole Board determina engender tions “does not exacting judicial more standard of applicable review than that to other agency administrative deci sions.” Ibid. As this Court observed in Application In re Parole 108, (1984): Hawley, 98 N.J. 484 A.2d 684 of agency charged The Board is the administrative with the of responsibility deciding an whether inmate satisfies the criteria for release under parole Act Parole of 1979. We find no reason to the Parole Board from the exempt well- established that a court review the actions an principle may of administrative agency being to determine if its is power exercised or arbitrarily capriciously. (citations omitted).] [Id. at 112, 484 A.2d 684 Cestari, supra, 6, See also N.J.Super. 224 at 548 n. 540 A.2d 1334 (rejecting the contention that a more restrictive standard of judicial apply review should release than to other decisions). administrative

We also take note of the Parole Board’s statement in its June 1999 denying parole decision granting that “the actual or withholding reposing of is a exclusively function in the Board, thing judicial Parole and there no parole.” such as Although the instances are few in which courts have found Parole denying parole Board decisions arbitrary to be so that affirmative judicial grant parole necessary, intervention to was that relief clearly may encompassed province judicial be within the of review. Board, 1, 9-10, See v. Williams State Parole N.J.Super. 336 763 174 Cestari, supra, N.J.Super. (App.Div.2000); 224

A.2d 747 Dietz, 15, 22-23, 1334; N.J.Super. 368 Mallamaci v. 540 A.2d (App.Div.1976). A.2d judicial in the context of this performing our review function

record, extraordinary by the Parole Board reflects reliance which testimony opinion Ferguson, of Dr. we must expert on the and expressed previously have about the reiterate concerns we expert by agencies of testimo- perils undue reliance courts abdicating responsibility ny impropriety and the decisional Krol, (1975), experts. v. N.J. A.2d 289 we In State involuntary periodic addressed the nature civil commitment and acquitted hearings review for criminal defendants reason court, insanity, psychiatric expert, made clear that the not the required to decide the issues: dangerousness determining It while courts should should be emphasized advantage the State and defendant, take full of expert testimony presented by the decision is not one can be left to the technical wholly expertise dangerousness psychologists. The determination of involves psychiatrists balancing against harmful delicate interest from conduct society’s protection This while interest liberty autonomy. decision, individual’s personal requiring to medical the court make use of the assistance which testimony may legal a one, is not a medical one. ultimately provide, [68 289.] 261, N.J. at 344 A.2d 31, (1996), D.C., Similarly, A.2d 634 which in In re 146 N.J. 679 involuntary paroled of a involved the civil commitment convicted offender, final of “[t]he sex we cautioned determination courts, dangerousness expertise psychia- with not lies the the of 59, psychologists.” trists Id. at 679 A.2d 634. See also State B.A.R., 343, 326, 5, in the C.A.H. 89 344 n. 446 Interest & N.J. of (1982) required (“Obviously, give A.2d 93 not the court was testimony experts---- controlling effect to the of the [W]hile prospects helpful important expert opinion on rehabilitative is hearing ... opinion in a cannot a substi- waiver such evidence be ultimate, decision, discretionary for highly tute court’s reached the through application statutory criteria to an of all the all evidence, juvenile jurisdiction of relevant that the waiver court is Williams, appropriate.”); supra, N.J.Super. at 763A.2d 747 (“Dr. entirely ... opinion report in without Gibbons’ his is founda- by empirical tion is contradicted the evidence. It not does Cestari, provide parole.”); deny sufficient credible evidence (“[Dr.] supra, N.J.Super. Rotgers 540 A.2d 1334 opinion potential that Cestari has ‘the become involved violent incident’ not does mean that there is a substantial likeli- crime____Thus, hood that he will commit another the Adult Panel Rotgers’ solitary negative read more into Dr. evaluation of Cestari actually report.” than stated purposes appeal,

For of this principle the that we extract from obligated, those decisions is that Parole the Board considering application parole, Trantino’s for to render its decision the testimony single expert, not on basis of the of a or selected by experts, application statutory but rather “the criteria to all B.A.R., the relevant evidence.” & supra, C.A.H. at 344 N.J. added). (emphasis n. 446 A.2d93

V Sufficiency of the Evidence8 now the sufficiency supporting We address of the evidence grounds various for denial of relied on Board. Parole complexity controversy concerning Because first ground, proceed psychological profile, again by Trantino’s we shall addressing grounds for denial reverse order.

1. Plan to Another Write Book

Although identify the Parole did not as Board this issue ground parole, discrete denial of in its Board decision the 8 Before the Division and before us Trantino contended that Appellate adducing Parole Board exceeded the of this Court's remand evidence scope IV, not in record the at the time of our decision in Trantino or that alternatively if the Board could the it to "new record was limited information” supplement rejected V, The Division contention. 331 that Trantino only. Appellate supra, 605-11, 752 A.2d 761. In view of our we need not address N.J.Super, disposition the issue.

176 going I to to that “I feel like am have Trantino’s statement treated money” he not something some as evidence that had to earn write years Board during prison. stated: been rehabilitated hearing areas in 9,1999 other at on June your exemplifies no conversation Perhaps changes, great Mr. with have not than conversation Gomez your which made you writing regarding if were the a book you paroled. possibility you observations, however, take appear did not into The Board’s issue, testimony subsequent on the which he Trantino's account appropriateness of writ- expressed his to reconsider the intention lot, just ing you me a about book: said bothered another “What stuff, know, that, just up you brought It I work on the families. I have I want to hurt them. And now to —I and it hurts. don’t going am to rethink about the book.” agree Appellate with Division’s conclusion that We finding [viewing in their that Trantino’s Trantino’s comments Board’s entirety, families not for a second a lack of victims’ could book evince plans empathy record. be reached on this reasonably [Trantino 761.] at V, supra, 616, 331 752 A.2d N.J.Super. Moreover, concerning that issue is at all none of the evidence “substantially question to the whether Trantino would be relevant likely” commit crime if he were released another Lack 2. Candor

(a) The Talbot Hall Incident noted, 143-46, 958-60, A at supra

As 764 .2d the Parole concluded Trantino had not been candid his June Board testimony any Board in he which denied incident during “agitated” Hall he occurred at Talbot which became “perturbed,” noting had that Trantino later recalled the incident However, during testimony. record his June reveals copy hearings of Dr. that between two shown incident, report fully to the and he Rosenfeld’s referred explained noting his initial failure to recall it that at the June Consovoy identify hearing did not Trabueco name. We are fully Appellate in accord with the Division’s observation that “as Consovoy name soon as mentioned Trabucco’s at the June hearing, provided Trantino remembered the incident and a reason 613, explanation.” able Id. at 752 A.2d 761. Neither the incident itself, explanation nor Trantino’s of his failure to recall the Talbot hearing, Hall incident at the June 4 indicate that Trantino is substantially likely they provide any to recidivate nor do evidentia ry support deny parole. for the Board’s decision to

(b) Lack Concerning Candor the Murder Voto of of

and Tedesco noted, supra

As at 764 A.2d at the Parole Board trial, testimony determined that Trantino’s inconsistent at a post-conviction hearing, hearings during psy relief at Board chological evaluations about the extent of his recollection of his role in the murders of “pattern Voto and Tedesco reflected a of deception” justified Board, parole. According denial of to the past memory Trantino’s “claims of loss” were neither “consistent” “genuine,” leading nor the Board to conclude that Trantino had regarding memory not night been candid his events on the finding by contrary murders. That the Board is to this Court’s unanimous determination Trantino TV that “there is consistent, memory evidence the record that Trantino’s loss is and, long-standing recollection, genuine, beyond the issue of acknowledgment responsibility legitimate.” is sincere and 154 N.J. at 711A.2d 260. heavy testimony Board’s reliance on Trantino’s inconsistent homicides,

about the extent of his recollection of the and its finding memory genuine, that his claimed loss is not reflects the paroled Board’s conclusion that Trantino can never be until he sufficiently recalls the details of the Lodi murders.

IV, expressly deny we held that the Board could not until psychological treatment resulted a restoration of Trantino’s recollection: involving it be

While other cases inmates to may insist appropriate pre-Code subjective guilt concluding evidence awareness of that an upon before inmate’s avowal of is sincere and that he is to the rehabilitated that he responsibility point in this be unwarranted such an insistence released, may crimes if will not commit finding that Trantino cannot and the record case we where, repeat, supports trigger. pulling The record thus to remember actually will not ever be able long-term will eventuate conclusion psychotherapy not sustain the does clearly given breakthrough necessary, that such a recollection recollection or in a that he has in order ensure acceptance responsibility, Trantino’s repeated ifwill, that he the likelihood rehabilitation eliminates a level of achieved crimes. commit released, 260.] at 711A.2d 38, 154N.J. [Trantino IV, supra, inadequate recol on Trantino’s Accordingly, the Board’s reliance parole support its denial of crimes to of the details of his lection in view of this Court’s discretion a clear abuse of constituted contrary in Trantino IV. specific holding to the (c) New York on Parole in Trantino’s Actions parole, ground denial of description of this for prior

Our 960-61, 147, that the Board at demonstrates supra at 764 A.2d 1963, Trantino, August from 1961 to that because June determined he had been released on pursuant to which violated the conditions violations demonstrated a prison, York those parole from a New parole dealings New York authorities. with lack of candor his undisputed, Board are we Although facts relied on the the that Tran entirely Appellate Division’s observation agree with the parole conditions from comply with New York tino’s failure to parole in 1999: fitness for to 1963 was irrelevant his 1961 in the sixties how Trantino’s conduct early Board to reasonably failed explain relevant before for when the only inquiry could reveal his suitability parole to commit another crime----In the Trantino was likely the Board whether light findings the Board that before the conclusion us, of these and the record York some to thirty-nine years Trantino’s conduct while on New thirty-six parole reached, not have been reasonably his denial of could earlier supports fails to the standard appropriate parole. apply 761.] 752 [Trantino 619-20, A.2d V, supra, N.J.Super. (d) Robbery February Payroll the Trantino’s Account of 961-62, 147-49, noted, supra at 764 A.2d at the As disclose, during failure to Board that Trantino’s Parole determined Board, robbery testimony victim of a that the his before accomplice he personal committed with an in 1956 sustained injuries supported parole. revealed a lack candor that denial of In our testimony view the reliance on Board’s concern- ing robbery support that 1956 its denial was both arbitrary and a clear abuse of the discretion. Board’s The record clearly knowledge indicates that Trantino had no direct injuries Consovoy victim’s until Chairman informed him of those injuries hearing. importantly, at the June More his testimony forty-three years concerned crime he committed earlier, inaccuracies, any, testimony and neither if in his nor the crime support itself can deny constitute for the Board’s decision to fully agree with Appellate We Division’s comments concerning that issue: knowledge, Trantino’s lack of 9, 1999, before June the victim had

Additionally, injured, during proceedings been denial renders his of that fact irrelevant prior mitigation his recidivism if Moreover, know, even he did of that prospects. age eighteen, of an offense committed at some portion forty-three years earlier, fails to now," demonstrate he would commit another crime when probably especially light viewed in offense, of his consistent admission to and his concession it Furthermore, was “violent.” from the New York excerpt probation suggests relied Board it was Trantino’s report upon by Fernandez, accomplice, who fell to the victim, the floor with and that Trantino’s own role was limited to patting locating nothing her down and the There is in the payroll envelope. report the that it who Board’s conclusion was Trantino the victim support “pulled” “down.” [Trantino V, 761.] 752 A.2d supra, N.J.Super. 331 at (e) Domestic Abuse Trantino’s First of Wife 150-53, in (supra

We summarized detail at 764 A.2d at 962-65) concerning ground the the record this evidence for it, parole. denial of understand Parole Board As we the concluded testimony wife, Helene, that that Trantino’s he struck his first three or four times and his similar statements when Rosenfeld, interviewed Dr. extent of minimized the his actual physical misrepresentation, abuse of Helene. That the Board determined, a lack supporting reflected of candor denial of conclusion, In reaching the on a that Board relied New York parole August during of Helene in which officer’s interview “approximately ago, she stated that two and one-half months per week.” that that parolee struck her several times We note many years in Parole has been included for information file on Board’s Trantino. Trantino’s unpersuaded are that the difference between

We testimony report parole officer the 1963 New York clearly parole demonstrated a lack of candor. officer’s necessarily Helene report did not establish Trantino struck acknowledged. did, than Even if it more often Trantino had any Parole Board has failed to establish material connection of his alleged between Trantino’s minimization his 1963 assaults parole first wife and “substantial likelihood” if released on presently would another crime. Board’s he commit The Parole testimony support parole its reliance on denial of arbitrary improper.

(f) Concerning Lack Be- Candor on His Efforts York Remove a New Parole Detainer Issued 197Uto

half Respect Dating Parole Back to New York Violations 196S previously relating

We summarized the evidence in the record 153-54, Supra issue. 764 A.2d at to this 965. As we under record, ground Board has this stand Parole abandoned denial of based certifications filed the Parole Board with that, belief, demonstrating contrary Board’s to the Trantino had knowledge by lawyers no about in 1974 efforts made on his behalf prevented to remove a New York detainer that Tranti had attaining Jersey. full in New no from minimum status (g) The Parole Board Also Lack Candor Inferred from During

Trantino’s Assertion His with His Re- Interview Barry Psychologist, Rosenfeld, tained Dr. That “He Took Many Pride in the Part-time Jobs He as a Youth” Held ¡S'euere” That He Steadily Age Had “Worked from Parole Board inferred lack of candor from representation Trantino’s Dr. Rosenfeld that he had maintained steady employment ages fourteen, noting from seven to that a probation report Kings County from contained information incon- However, Kings sistent with representation. County that probation report merely employment noted that Trantino’s record age “spotty,” totally sixteen was a characterization that is after representation consistent ages with Trantino’s that focused on Moreover, seven to fourteen. that evidence bears no relation to whether there exists a “substantial that Trantino likelihood” will if parole, commit another crime released the Parole ground that support Board’s inclusion of denial of consisted a clear of discretion. abuse

3. Psychological Counseling Trantino’s Failure Address in

the Issues That Led Him to Engage in Domestic Violence with His First Wife. previously

We relating summarized the evidence to this ground 150-53, supra 962-65, for A parole, denial of 764 .2d at noting that, that the Parole Board concluded because Trantino’s psychological counseling lack of prison while in about the causes physical substantially abuse of his first wife in it was likely that Trantino commit crime if would another released on acknowledge We note that Board did not consistent he had his first admissions abused wife preceding months Lodi murders and that he considered his infidelity during period to constitute a form of abuse. No produced evidence was to establish violence that domestic counsel ing had been prison, offered to Trantino while in nor that he had rejected counseling. behavioral, psychological, such No or domes experts tic abuse interviewed Board to were establish a connection between abuse domestic and recidivism. The Board rely prior did not on evidence recidivism rates relation to violence, untreated nor did domestic it establish the Board’s practice deny parole routine was to to inmates that had not prior counseling history received for of domestic violence al though short, charge. an incarcerated on unrelated no evi any provides support dence this record Parole Board’s counseling violence for domestic Trantino!s lack conclusion that years ago demonstrates thirty-seven engaged in more than he if another crime he would commit likelihood that a substantial parole. released Parole Plan

4. a Suitable Lack of concerning Tran the evidence previously summarized We prior plans. from parole plan and its differences current tino’s change 156-57, primary in his 764 A.2d at 967-68. Supra at from his second parole plan, attributable to his divorce current to which Charlee would that the extent wife Charlee parole appears in the event of his for Trantino serve as resource Nevertheless, evidence indi the record includes be uncertain. to continue to be an that Charlee would cating some likelihood Board stated In a letter to the Parole Charlee available resource. capricious by the Board’s behav “prompted divorce was that their him, pressure was parole to then after granting times ior four - away parole caused emotional devasta applied, taking which my hardship to me----With own financial tion and tremendous stake, removing myself seemed the from the situation health at choice, heartbreaking one.” Trantino’s testimo- only and it was a explanation, and he asserted that ny with was consistent Charlee’s job willing him a if he were released. would be to offer Charlee Moreover, Weiner, expert by the psychological retained Dr. General, report that Charlee remains Attorney noted his 1998 Trantino to support system and stated: “Were Tom part of his divorce, tomorrow, my despite it is still prison their walk out of quickly part of his opinion that would become professional Charlee everyday life.” parole plan unchanged. He respects other area, work, finding Camden/Cherry Hill

contemplated living in the seeking going meetings, AA attending Rutgers, classes however, extent, counseling. that the Board determined To the “sufficient,” impractica- we note the plan that this was not imprisoned by the bility assumption that an inmate of the Board’s thirty-seven years expected State for develop could be on his precise own a detailed plan daily for his activities in the event regulations The Board’s own appear recognize that a parole plan should not be a decisive factor in the Board’s decision, including an “parole plans” inmate’s only as one of twenty-three factors to be deciding considered the Board in 10A:71-3.11(b)14. grant parole. whether to See N.J.A.C. In its decision the Parole responsibility Board disclaimed all assisting developing inmates in parole plan, ignoring this Court’s specific IV, recommendations to the Board in supra: In its determination, the Board can devise will conditions that allow pre-release it to assess how. Trantino handles the of stresses or induce society may impel him to commit crimes. Those conditions could include work community details, furloughs, minimum status, and other security measures that would to serve gradually reintroduce Trantino into and lead to his society ultimate release. the Board

Alternatively, decide to may such impose post-release conditions, as drug testing, intensive that would supervision ensure that Trantino was not behaving engage in a that indicates he will in way criminal activity. In its redetermination of parole fitness, Parole Board also consider may house treatment as a condition of halfway parole.

[Trantino IV, 154 N.J. at supra, 39-40, 260.] A.2d We conclude that the arbitrarily Parole Board acted relying insufficiency on the parole plan ground of Trantino’s as a for denial implication of The Board’s that Trantino could paroled Bergen County, 967-68, be to supra at 764 A.2d at unwillingness and its recognize authority to its own to mandate supportive material requirements parole, as conditions of cast doubt on the reasoning. Finally, soundness of the Board’s in view matter, disposition of our require of this which will Trantino to year supervision halfway reside for one under the of a house Department Corrections, under contract with the we are satis any imprecision fied that parole plan readily Trantino’s current can ensuing be remedied in the twelve months. Psychological

5. Trantino’s Profile rejected grounds Because we heretofore have all of the other relied on denying parole, the Parole Board in sufficiency forth psychological profile, set relating to Trantino’s the evidence 157-72, 764 A.2d at 968- opinion, supra in detail earlier this reviewing disposition. Before significance our critical is of evidence, controlling statutory standard that we restate disposition: governs the Board’s eligibility, at the time of unless released on parole An adult inmate shall be to ... this act or or in the filed developed information report pursuant supplied hearing that there the evidence at a ... indicates by preponderance produced commit a crime under the laws of that the inmate will is a substantial likelihood at such time. this if released on parole State added).] (emphasis [N.J.S.A 30:4-123.53 heavy Board’s reliance on June We noted earlier the psycholo testimony Ferguson, the Board’s chief of Dr. Glenn Ferguson’s at 968. Other than Dr. gist. Supra at 764 A.2d testimony only marginally on the testimony, the Board relied 1999 before the who testified November several other witnesses term, eligibility five months concerning Trantino’s future Board denying parole. We are after the Board issued its decision only have accorded minimal the Board should convinced testimony because of both the weight of those witnesses testimony the fact that the Board of their substantive content any deny parole Trantino several months before had decided to of those witnesses testified. O’Sullivan, psychology unit for

Mark a member of the Board’s many years, in November 1999 that he scored Trantino at testified that test administered earlier 1999. Because 31 on a PCL-R higher much than Trantino’s scores on the same test score was so Hall, Ferguson, and once administered twice Dr. once Talbot Rosenfeld, reasonably signifi- accord Dr. the Board could not weight testimony in context of the entire record. cant to his Berrill, Dr. Naftali who had never met Trantino but had reviewed records, frequently diagnosed some of his noted that he had been disorders, personality but never with narcissistic and antisocial Dr. that personality a borderline disorder. Berrill stated with many years incarceration do not Trantino’s of infraction-free structure,” necessarily any change personality reflect his “core prospects for realistic assessment noting that a unsupervised “only possible an [be] would success opinion on the likelihood expressed no setting.” Dr. Berrill crime. commit another Trantino would 1999, and that in November Timothy also testified Brennan Dr. opinion that Dr. Brennan’s essentially limited to testimony supervised environ- “in a constrained institutional behavior community. Similarly, in the of behavior not reflective ment” was Trantino, interviewed had not Papparozzi, who also Dr. Mario is not “reason infraction-free behavior institutional testified also will] ... inmate [an to the streets released that once believe free____” “virtually acknowledged that it is He remain infraction person going to do particular predict ... which impossible to expressed Papparozzi Dr. nor thing.” Neither Dr. Brennan bad commit another Trantino would likelihood that opinions on the crime. any testimony provides direct Ferguson’s

Accordingly, only Dr. concerning Trantino’s findings evidentiary the Board’s basis for find the Board’s counts we On several likelihood of recidivism. testimony unpersuasive. Ferguson’s Dr. reliance on hearing, Dr. as of the June preliminarily that We note exam, licensing written recently passed the “just Ferguson had licensed-practicing full-fledged my way being a I’m on exam. So Chairman couple of months.” hopefully in the next psychologist had expert he an because Ferguson as Consovoy characterized in-depth evaluations. almost 400 performed Parole Board’s Nevertheless, highly skeptical of the are we testimony Ferguson’s acceptance of Dr. complete Mr. Tran- that “makes personality disorder possesses a borderline In its decision dangerous individual.” particularly tino a diagnosis as Dr. personality to the borderline Board referred concern.” Ferguson’s “most serious of Tran- evaluations fifty-plus psychological note that We only record, Ferguson is the Dr. included this tino that are psychologist diagnose to him personality with a borderline disor- testimony der. Dr. gone Berrill’s confirmed that no one “has as say, example, far toas that there was a form of borderline personality Diagnostic disorder.” The and Statistical Manual of Disorders, (DSM-IV) edition, explains Mental fourth symptoms personality adulthood, begin early of borderline so it unlikely is that the disorder could have remained undetected psychologists the other past forty years. over the “The essential Personality feature of Borderline pervasive pattern Disorder is a instability interpersonal affects, relationships, self-image, impulsivity begins by early and marked adulthood and is present variety in a of contexts.” DSM-IV at 650. The DSM-IV also cautions that borderline disorder can be confused with narcis- sistic disorder: discriminating The most useful feature in Narcissistic Disorder from Personality ... ... Borderline whose interactive are styles callous, and respectively coquettish, grandiosity is the needy, characteristic of Narcissistic Disorder. The Personality self-image

relative as stability well as the relative lack of self-destructiveness, distinguish and abandonment concerns also impulsivity, Narcissistic help Personali- Disorder from Borderline ty Disorder. Personality

[Id at 660.] Moreover, Personality diagnosed “Borderline Disorder predomi- is (about 75%) nately in females.” Id. at 652. Ferguson’s

We also note that Dr. report own 1998 makes no mention of this diagnosis. new borderline report The 1998 ob- serves traits, that “PCL-R personality results reveal antisocial although they magnitude are not of a suggest that Thomas anis violation, imminent risk for or violent recidivism if re- leased.” According Ferguson’s report, Trantino “is less antisocially oriented prison than 72% of the 1992 inmates sample.” Moreover, ... “there no evidence of serious mental illness in either history present adjustment.” Thomas’s or The report (inkblot) reveals the results of a Rorschach test that “make previous halfway Board’s placement insistence on prior house appropriate.” release all the report more does not mention that “particularly dangerous individual,” Trantino is a nor

187 presents recidi- Trantino a substantial risk of does it state that vism. Ferguson’s testimony reliability Dr. 1999 before the compared significantly it is in detail

Board also is diminished when prior Trantino in 1995 and Ferguson’s with Dr. evaluations of February 1996 the Board. In his 1995 his interview diagno- Ferguson only noted Trantino’s consistent evaluation Dr. disorder, personality an referred Trantino’s sis with antisocial to relatively favorable score on Parole Assessment and Selection test, with a favorable recommendation for Scale and concluded observing of well-established social parole, “[t]he that combination treatment, age supports, ongoing will most motivation for likely parole lead outcome.” to a successful interview, Ferguson acknowledged only

In his 1996 disorder, really personality that “there no antisocial observed with,” begin although that he psychopathology and concluded to street,” disposi- a “succeed on the better believed Trantino could halfway prior to a house tion would a transfer be Moreover, that should Ferguson’s June 1999 conclusion personality to deal with receive “more intensive treatment testimony “he’s sharp contrast to his 1996 issues” stands just everything get as far as institutional gotten he can about programs.” evaluation, 19 on Ferguson Dr. scored Trantino at his 1998 score, test, in his testimo- highly but 1999

the PCL-R favorable reviewing the New York ny he stated that after before the Board test, 24 which Trantino at same records he re-scored prison improba- find average inmates. We it is the score State ble, familiarity Ferguson’s with Trantino’s entire Dr. view of parole records from background, information in New York Ferguson’s early substantially have affected could so sixties Nevertheless, in his PCL-R test. scoring of Trantino’s evaluation, testimony year before his August less than a Board, antiso- Ferguson Dr. reiterated that Trantino’s before the magnitude suggest personality traits “are not of a cial violation, [Trantino] is an imminent risk for or violent recidivism if released.” although Ferguson’s

We also note that testimony in Dr. before the Parole Board he “potentially described Trantino as violent,” Ferguson expressly Dr. respond declined to to Chairman Consovoy’s question substantially whether likely Trantino was crime, commit observing another legal question that that was “a more than psychological question.” TV, Trantino

In although acknowledging agen that courts and cies decision-making should not abdicate responsibilities to ex perts, this Court nevertheless criticized the Parole Board for its explain adequately failure to its rejecting opinions reasons for the psychologists of recently who had recommended that Trantino be IV, supra, parole. released on 154 N.J. at 711 A.2d 260. applies That criticism greater with far force to this record. relying exclusively almost Ferguson’s on Dr. testimony psychological profile about Trantino’s primary as the basis for denying parole, the effectively Board’s decision disregarded all of psychological the other evaluations in the supported record that parole. The Board’s decision weight” to accord “no to the evalua tions of Dr. Weiner and Dr. by Rosenfeld —the former retained Attorney the General and the latter totally Trantino —was unjustified, strongly suggests and that it was their conclusions recidivism, about Trantino’s low risk of qualifications, not their that motivated the Inexplicably, Board. completely the Board disregarded Ferguson’s Dr. positive evaluations, three earlier only relied on testimony. Similarly, his 1999 ignored the Board completely almost thirty-five the psychological evaluations of record, Trantino from 1979 to 1997 contained the the vast majority supportive which were parole. highly The Board’s only selective psychological focus on the supportive evidence of its parole, denial of disregard and its total of evidence favorable to parole, undermines the deference that a ordinarily court would agency confer on an determination. Act, permitted was not Parole the Board the

Under “by preponderance of the evidence” it deny parole unless found if substantially likely another crime to commit Trantino was exists no this record there 30:4-123.53. On released. N.J.S.A. substan finding that Trantino was Parole Board’s doubt that the preponderance on a tially likely was based not to recidivate record, selective rather on Board’s in the but evidence that could only portions of the record arbitrary on those reliance The Board failed support Board’s conclusion. possibly address, utterly disregarded, evidence substantial fact record, years incarceration many of infraction-free spanning evaluations, Tranti that demonstrated psychological and favorable B.A.R., supra, & See C.A.H. no’s likelihood of success (“[W]hile expert opinion on A.2d 93 at 344 n. 89 N.J. in a helpful important waiver prospects is rehabilitative a substitute for the hearing opinion ... evidence cannot be [s]uch decision, ultimate, discretionary highly reached [tribunal’s] statutory criteria to all through application an of all the evidence, jurisdiction is juvenile court that the waiver of relevant added); Williams, N.J.Super. supra, 336 appropriate.”) (emphasis (“Dr. 747; opinion report ... A.2d Gibbons’ empirical contradicted entirely and is without foundation deny provide sufficient credible evidence It does not evidence. parole.”). in this record to which ignored other evidence

The Board also in Trantino TV: specifically directed its attention we on of fitness must be based parole The Parole Board’s ultimate determination again engage in criminal Trantino will activity. is a likelihood that whether there Board evaluating this the Parole standard, fitness for under Trantino’s parole weight as give and, already is now old years to the facts that Trantino sixty should furloughs work and two on details has been released noted, sixty-nine previously in has a correctional rule twenty-seven year’s; has not violated incident; without counseling; himself while has educated substance abuse successfully completed has a stable vocations for support the available prisoners; has pursued prison; without Tract, Wharton facility without incident at the network; was housed guards; the last two psycholo- fit for transfer by and has been deemed perimeter length light of time gists evidence, of that the him. Moreover, to evaluate on which he successive occasions sentence, and the Trantino has served under longer eligible no a material consider- for parole, punishment has been deemed ation in the determination. parole 260.] 711 A.2d [Trantino 154 N.J. IV, supra, Based on our comprehensive detailed and review of the evidence by relied support on the Parole Board of each of the several grounds on which parole, it based its denial we conclude that Parole Board’s denial of supported, is not as the Parole requires, by preponderance Act of the evidence in the record noted, and cannot be sustained. arbitrary As we found to be an abuse of discretion the purported Parole Board’s reliance on years events that prior occurred to the 1963 Lodi murders support its decision. That reliance the Board on evidence of such distant only events can be makeweight understood as a overcome the lack of support substantial evidence to the Board’s view, In our emphasis conclusions. Board’s on that evidence significantly diminishes ordinarily the deference courts accord to agency Concerning decisions. psychological profile, we conclude that the Board selectively viewed the evidence rather than comprehensively, relying exclusively almost Fergu- on Dr. testimony son’s and excluding substantial, from its consideration credible, persuasive evidence highly supportive that was parole. Accordingly, judgment we affirm the Appellate Division to the extent that it reverses the Parole Board’s June denying decision parole. Trantino dissenting

Our colleague exclusively relies almost Fergu- on Dr. testimony son’s 1999 support his conclusion that the Parole Board’s decision can be sustained based on evidence in the record. He also part relies in testimony Berrill, on the Brennan, of Drs. Papparozzi, psychologist O’Sullivan, Parole Board four witnesses who testified before the Board five months after Board decided in deny June 1999 to The dissent does not acknowledge, however, that those witnesses were not called testify Board to denied, whether should be but rather testify were asked to length on the eligibility Trantino’s future term. Nor does the Berrill, dissent disclose that neither Dr. Dr. Papparozzi Brennan nor Dr. ever examined or interviewed Tranti- no and that none of those expressed witnesses ever opinion an about the substantial likelihood of committing another chairman of newly-designated fact, the Papparozzi, Dr.

crime. “virtually it is Board, Board that to the admitted Parole the likely recidivate. are to inmates predict” which impossible to acknowledge does the dissent .2dat 972. Nor 764 A Supra at O’Sullivan, employee, a Board obtained the PCL-R score test highest on the same scores by more than 30% the exceeded Ferguson. Dr. Hall and at Talbot administered when on the record reliance Thus, of the dissent’s the essence testimony Dr. the 1999 focuses on decision support the Board’s Dr. Fer- because plainly flawed —not That reliance is Ferguson. anticipated Board testify to the conclusion failed to guson law, Board, utterly contrary to because be reached —but would contradictory evidence on disregarded all of the completely testimony and prior Ferguson’s own record, including Dr. evaluations, parole. supported Ferguson’s 1995 length Dr. at have summarized previously

We Trantino, testimony, all and his evaluations of and 1998 placement. halfway house following supportive of highly testimony, acknowledge that address or fails to The Board to consider Board’s failure justify the explain or does not dissent acknowledges and The dissent relevant evidence. highly such any weight whatsoever failure to accord Board’s agrees with the 209-10, 764 A.2d Post opinion of Dr. Rosenfeld. supportive justification explanation or no dissent offers But the at 997. Dr. opinion of weight” to the “no to accord decision the Board’s Attorney by the Gener hired psychologist Michael Weiner —the recidi likelihood of had a “low” concluded al—who justify the explain or attempt the dissent Nor does vism. thirty-five psychological weigh the failure to consider Board’s 1997, the period 1979 to record, spanning in the evaluations supportive of favorable majority which were vast reviewing courts acknowledged that already have We they are arbi- unless agency decisions ordinarily not disturb do trary, unreasonable, capricious or or are “supported by not sub stantial credible evidence in the record as a Dennery whole.” v. Educ., 626, 641, (1993) Board 131 N.J. (emphasis A.2d 858 of added). However, as Justice Pollock noted in Jersey P.F. v. New Developmental Disabilities, 522, 530, Div. 139 N.J. 656 A.2d 1 (1995): agency’s “When an manifestly decision is mistaken ... justice interests of reviewing authorize a court to shed its tradi tional agency Court, deference to decisions.” This in Clowes v. International, Inc., 575, 589, Terminix 109 N.J. 538 A.2d 794 (1988),explained [agency] ‘wrongness’ that a “sense of can arise in ways numerous lack inherently manifest credible evi —from support dence to finding, obvious overlooking or undervalua evidence, clearly unjust result, tion crucial many and others.” (quoting Johnson, 146, 162, (1964)) State v. 42 N.J. 199 A.2d 809 added). (emphasis eight judges

Of the meticulously who have record, reviewed this only dissenting colleague our is satisfied that the Parole Board did not arbitrarily, act and that there is evidentiary sufficient support for concluded, its decision. This Court however, has Board’s decision cannot be sustained because it comply failed to with the Parole Act’s mandate that only be denied if a “preponderance of the evidence” demonstrated that Trantino was substantially likely to commit another crime if released. N.J.S.A. 30:4-123.53. Because unjustifiable Parole Board’s overlooking “obvious evidence,” or undervaluation of crucial John son, supra, 162, 199 42 N.J. at A.2d we have no doubt that its determination, preponderance based not on a of all evidence but arbitrarily on evidence support result, selected to a desired manifestly mistaken and must be set aside.

Finally, only we briefly mention portions the other of the record noted the dissent. previously We have addressed the Talbot Hall incident and vaguely expressed Trantino’s intent to write book, supra 175-77, another 978-79, at 764 A.2d at both relied dissent, 217-18, post 1001-02, at A 764 .2d at only and add that the evidence little, relevant to those matters any, sheds if recidivism, no provides likely of Trantino’s

light on the issue Similarly, the dissent’s determination. support the Board’s inju concerning the alleged lack of candor reliance on regarding his assaultive robbery and the 1956 to the victim of ries 215-17, wife, 764 A.2d post at his first conduct toward thirty- occurred, forty-five respectively, involve incidents Moreover, reveals that Trantino ago. the record years seven knowledge extent of the prior apparently had no had its injuries, the Parole Board robbery victim’s report years probation twenty the New York possession for over first wife. This toward his dealing assaultive conduct with his three events that occurred alleged lack of candor about inmate’s bearing present likeli simply on his ago has no four decades or that flatly reject the dissent’s assertion We hood of recidivism. denial of supportive the Board’s to or of that is material evidence alleged Trantino’s on evidence of Despite reliance the dissent’s murders, specific in the 1963 Lodi of his role lack of recollection 1000, to this 215, pursuant that we reiterate 764 A .2d at post at IV, supra, 154 N.J. at 34- in Trantino decision unanimous Court’s support for the constitute evidence cannot 711 A.2d that We of recidivism. Trantino’s likelihood of Board’s determination finding supports the “the record clearly opinion in that that stated be able to remember will not ever Trantino cannot and that Accordingly, we determined trigger.” actually pulling the long-term conclusion that psychother- not sustain the [t]he thus does clearly record breakthrough that such a recollection recollection or in a will eventuate apy given in order of responsibility, repeated acceptance necessary, the likelihood eliminates achieved a level of rehabilitation ensure that he has crimes. if commit will, released, that he 260.] 711 A.2d [Id. by the understood have been in Trantino TV should decision

Our denying parole based on evidence preclude it from Board to the Lodi the details of adequate recollection of Trantino’s lack reliance on and the dissent’s Both the Board’s homicides. evidence are inconsistent with in this Court’s decision Trantino IV.

VI important modify In respects judgment several we Appellate judgment Division. That reversed the Parole Board’s parole denial of and remanded the matter to the Parole Board grant parole thirty days. with the direction to in addition, although dismissing appeal as moot Trantino’s from the Department decision of the transferring of Corrections him from Prison, Talbot Hall to South Appellate Woods State Division remanded that Department matter to the of Corrections and immediately placed directed that pre-parole Trantino “be in a halfway facility” preparation house or residential for his release parole days. thirty fully persuaded are

We that Trantino’s release on thirty days should not contemplated by occur as Appellate judgment, subject Division’s pre-release but should be to a condi satisfactory completion tion of placement twelve months halfway facility house with release to completion occur on period. Accordingly, such twelve-month disposition our of Tranti separate appeal no’s Department from the of Corrections’ decision to transfer him to South Woods is remand that matter to the Department of Department Corrections and to order the of Cor thirty days rections transfer Trantino filing within of the of this opinion halfway facility to a by Department house selected the Corrections that is located within a proximity reasonable to the Camden/Cherry Hill area. impose satisfactory

Our conclusion to halfway place house ment for pre-release twelve months as a parole condition of supported by the Parole attempts Board’s during numerous past very decade to achieve that same In result. its 1991 decision denying parole, the specifically Parole Board recommended that every “Trantino halfway make effort to achieve house status order for the Board to structured, evaluate his behavior a less

195 sought half- promptly Trantino then environment.” transitional by Department of way placement, which was denied house Corrections. 1993, panel of the Board denied a two-member halfway house sta- grant not Trantino the DOC would

“because file suit that Trantino panel members recommended tus.” III, supra, Trantino 296 Department of Corrections. against the 451, N.J.Super, at A.2d 274. In its December 1993 notice halfway decision, strongly house again recommended the Panel prior release: placement for Trantino if Mr. Trantino can enter and successfully Panel is of the The Adult opinion program his full as an inmate he can achieve a correctional house halfway complete of his sentence therefore will satisfy punitive aspect rehabilitative potential likelihood test. meet the substantial 274.] [Id. at 687 A.2d 453-54, directed, halfway placement, again applied for house Trantino As Department in 1994. again of Corrections was denied which attributed of Riverfront Prison A letter from the Administration offense, Trantino, adverse harm to the denial to threats of reaction, Legisla- community objections a member ture. vacated, two- denying parole April decision

After an 1995, September parole again panel Board denied member continually Department of Corrections has noting that “[t]he halfway expressing its your placement in a house” denied halfway house would be beneficial placement “into belief that ” potential.... your rehabilitative you your goal to reach only explanation of an abbreviated the record contains Because transfer Trantino to a refusal to Department of Correction’s house, Department’s whether the halfway express no view on we by the Parole refusal, strong statements despite and consistent transfer, meritorious primarily favoring was based Board IV, 711 A.2d supra, 154 N.J. at In Trantino considerations. Appellate agreement with the expressed emphatic our 260 we III, N.J.Super, in determination Division’s 1994 decision Department of Corrections’ A.2d that the denying halfway placement house deficient in that it adequate demonstrating lacked an reasons that the statement of event, any denial was based on sufficient credible evidence. In halfway placement the recommendation of house for Trantino prior parole supported only by prior release is not Parole Board decisions, by psychological reports numerous evaluation in the Trantino, concerning specifically by Ferguson’s record and Dr. addition, report. Department we note that of Corrections regulations subject placed halfway inmates houses to urine monitoring, breathalyzer testing, disciplinary regu rules that late, absences, among subjects, other unauthorized out-of-state possession dangerous travel and of alcohol or controlled sub stances. See N.J.A.C. 10A:20-4.19 and 4.20. We are convinced halfway placement prior that a twelve-month house to Trantino’s parole appropriate necessary safeguard is an to minimize the prison likelihood that his from release will lead to the commission addition, of a criminal offense. In the Parole Board is authorized impose appropriate pre- posL-release reasonable and condi opinion. tions of consistent with this

VII A responsibility resolving appeal this accordance with weighed heavily Court, law has on the members of this as well as judges on other and Parole Board members who have ruled on prior appeals. but related pain We do not underestimate the anguish disposition likely that our to cause to the families and friends of the victims of the Lodi murders. Nor are we unaware disposition that our readily will not be understood members of public incomprehensible who will find it requires that the law párole of an responsible release inmate who was for the murder of police opinion explains two officers. Our release would impossible if today, be the Lodi murders occurred because of significant changes severity sentencing provisions our Criminal Code. Current law would mandate no less than life imprisonment parole, if without not the death sentence. The law in effect when these crimes were committed was different. Under eligible parole law Trantino became release 1979.

The Parole Act of 1979 the eliminated conventional parole prisoner punitive aspect discretion to release once the of provided only a sentence has been served. That statute that a prisoner parole parole eligibili “shall be released at the time of ty, ... there unless is a substantial likelihood that the inmate will commit a crime under the laws of this State if released on 30:4-123.53(a). legislation at such time.” N.J.S.A. “The shifts the prove prisoner burden to the State to that the ais recidivist and Jersey should not be released.” Byrne, New Parole Bd. v. 93 N.J. 192, 205, (1983). Legislature 460 A.2d 103 We stated that “the recognized parole eligibility that under the Parole Act of 1979 a legitimate expectation date creates a of release ... find absent ings justification upon for deferral exists. Based this inter statute, pretation federally-protected liberty of our find we that a short, interest exists.” Id. at 460 A.2d 103. In because the punitive aspect served, already of his sentence has been IV, supra, 154 N.J. at 711 A.2d Trantino had a constitu tionally protected right prove unless the State could there was a “substantial likelihood” that he would commit another proof crime. It is the absence of that that entitles Trantino to parole, sympathy compassion not or for him. No matter how may officers, killing much we abhor the admitted of those two the apply. law must suggest

Portions of this record can read to that under be the eligible halfway law Trantino was for transfer to a house and subsequent years ago, public pressure release several but that prevented occurring. great pres- that from No matter how sure, agencies government ignore special cannot the law core, eases. At its this case more about the rule law than it is great strength about Thomas Trantino. “The of the rule of law in society applies equally persons, a democratic is that it to all Seidl, 224, 228, good.” v. 68 N.J. as well as the Catena bad (1975). A.2d 744 into the stone of the facade of United States

Carved “Equal Supreme building are these words: Justice Under Court government permit agencies If to create Law.” ever courts law, many exceptions applying it for the but to the rule disfavored, irreparably damaged exempting we will have democracy. our foundation of

B modify judgment part part affirm in We Appellate Division. The June 1999 decision of the Parole Board reversed, denying parole grant is and the Board is ordered subject satisfactory pre-release to the condition of completion halfway placement, and such of twelve-month house appropriate pre- post-release may it other conditions Concerning Department impose. appeal from the transferring prison, Corrections’ order him to South Woods we Department remand that matter to the and order that Trantino be placed thirty days opinion halfway facility within in a house this proximity Camden/Cherry within a to the Hill area. reasonable So ordered.

BAIME, J., dissenting. presents questions public Following This case concern. protracted proceedings, the Board Parole concluded that Tranti- prison pose unjustifiable danger from no’s release would an risk of determination, public. vacating Appellate to the In this Division decided that the evidence did not warrant that conclusion. high. Appellate The issue is now before us. The stakes are If the correct, Division is Trantino deserves his freedom and is entitled right, consequences But if the Parole Board felt, by pain-free public entity, Trantino’s release will be not some official, by penitent psychologist, public nor some social worker or by protection but tomorrow’s next victim for we whose welfare view, my the Parole Board’s denial of release is hold office. in the record. I would supported substantial credible evidence safety public wager the on the odds Trantino is not changed man.

I. presented disarming ease. questions The can be articulated with (1) are to determine whether the Parole Board: followed We (2) express implied legislative policies, based its decision (3) record, present credible evidence in the substantial grounded in reached a reasonable conclusion the relevant facts. Bd., 19, 24, 711 Jersey Trantino v. New State Parole 154 N.J. (1998). meandering this has A.2d 260 Because of the course case taken, precision legal our earlier decisions defined with correct determining parole The determi- standard for this case. Tran- hinges upon whether there is a substantial likelihood nation crime if released. Id. at 711 A.2d 260. tino will commit another upon findings made inquiry focuses whether the factual Our reasonably have reached on sufficient the Parole Board could been (citing 711 A.2d 260 credible evidence Id. record. 534, 547, Cestari, N.J.Super. 540 A.2d 1334 Parole Bd. v. State (1988)). denied, (App.Div.), 546 A.2d 558 N.J. certif. weigh guide are not to principles that us are well settled. We anew, merely the record but instead determine whether evidence by the Parole Board. State v. supports the conclusion reached (1964). 146, 164, Johnson, must review 42 199 A.2d 809 We N.J. advanced, initially but not light record in of the contentions the if the matter we point of view of how we would decide from say that we agency. administrative Ibid. That is not to were the mechanistically rubber-stamp the actions of administrative are that the Parole Board We must nonetheless remember tribunals. charged by vitally expressly is concerned with recidivism and there is a substantial Legislature to withhold release when paroled. new offenses if likelihood the inmate will commit 200 strong grounded public policy scope of review is

This limited First, recognize that our practical realities. we concerns and the other branches of to fairness is shared with commitment quiet, judicial but not government. The branch should be exper- necessarily quiescent, should defer to the branch. We responsibility agency charged with the tise of the administrative only thoroughly if resolving questions, and intervene we are these miscarriage justice occurred. must that a has We convinced judges monopoly justice. appellate have no remember Second, Board is better situated than we to deter the Parole traditionally based on the mine factual issues. We review cases transcripts, The voluminous documents and briefs submitted. always accurately For depict do not what occurred below. records may negate printed word example, person’s manner a barb his hold, just may supply sting transcript will not seems to as it required findings to the show. We are thus accord deference substantially agency that are influenced its the administrative opportunity the “feel of to hear and see the witnesses and to have case,” opportunity reviewing enjoy. an which a court cannot 161, 199 Id. at A.2d 809. universally applied in principles

These have been our review of see, Locurto, findings judges, e.g., the factual of trial State v. 157 474, (1999); Barone, 599, 463, 724 A.2d v. 147 N.J. 234 State N.J. 615, (1997); Sales, Meshinsky 689 A.2d 132 v. Nichols Yacht 110 464, 475, (1988); v. N.J. 541 A.2d 1063 Rova Farms Resort Co., 474, 483-84, (1974); Investors Ins. 65 N.J. 323 A.2d 495 State Johnson, 809, 161-62, v. 199 A.2d N.J. administrative see, 655, 644, agencies, e.g., Taylor, A.2d re 158 N.J. (1999); Review, 197, 210, Brady v. Board 152 N.J. 704 A.2d 547 (1997); Int'l, Inc., 575, 587, Clowes v. Terminix 109 N.J. 538 A.2d (1988); Exch., Inc., v. London Metals 86 N.J. Goodman 28-29, (1981); Bros., 429 A.2d 341 Close v. Kordulak 44 N.J. (1965). They efficacy particular 210 A.2d 753 have in the context of our review of the Parole actions. Board’s

201 “discretionary The decision of a involves board assess multiplicity imponderables entailing primarily ment[s] of a what may a man what simply is and he become rather than he what has done.” v. Greenholtz Inmates Nebraska and Corr. Penal 1, 10, 2100, 2105, 668, Complex, 442 U.S. 99 S.Ct. 60 L.Ed.2d 677 (1979) Radish, (citing Expert The Advocate and the —Counsel (1961)). Process, 803, the Peno-Correctional Minn. 45 L.Rev. 813 New certainties exist. The differs decision from the “traditional judicial decisionmaking mold of the choice involves a synthesis of record personal through facts and observation filtered experience predictive leading decisionmaker and to a judgment to what is as best both for the individual inmate community.” Id. at 99 S.Ct. at 60 L.EdZd 668. Parole decisions often more judgment upon involve no than a value complex a factual application precise rather than evident an of a judgment inevitably rule of law. This seasoning value reflects the experience judges. and the of the one who essentials, Stripped to its a board’s decision a concerns prediction behavior, to an prognostication as inmate’s future necessarily fraught subjectivity. Jersey with Puchalski v. New Board, 294, 300, State N.J.Super. (App. Parole 104 19 250 A.2d Div.1969). greater degree To than is the case with other agencies, decision-making administrative the Parole Board’s func discretionary appraisals. tion involves individualized v. Beckworth Board, 348, 358-59, Jersey New Parole State 62 N.J. A.2d 727 301 (1973). determinations, reviewing the Parole Board’s we must arrogate power take expressly granted care not to ourselves a agency. may to that administrative We overturn the Parole only they arbitrary if capricious. Board’s decisions are “Arbi trary capricious action of administrative bodies means willful unreasoning action, disregard without consideration and in Fauver, 204-05, Worthington circumstances.” v. 88 N.J. (1982) (quoting Bayshore Sewerage Department A.2d 1128 Co. v. Protection, 184, 199, N.J.Super. Environ. A.2d 751 (Ch.Div.1973)). opinions,” “Where room for there is two adminis agency trative decisions must be considered valid “when exercised consideration, though may be honestly upon even it and due Ibid. conclusion has been reached.” believed that an erroneous II. in the backdrop, ample I find credible evidence

Against this is a the Parole Board’s conclusion that there supporting record will another crime if released. commit substantial risk opinions experts of the and corrobo- This evidence consists rative factual data. Psychological

A. Trantino’s Profile testimony heavily upon of its Chief Parole Board relied finding posed Psychologist, Ferguson, in that Trantino a Dr. Glen majority Appel- substantial risk of recidivism. Both Ferguson’s Tranti- late Division ultimate conclusion that discount Ferguson no it is true that should be denied While Trantino, metamorphosis opinion respecting I underwent a his reasonably accepting am the Parole Board acted satisfied that conclusion release of the inmate would the witness’s ultimate that pose unjustifiable public. an risk to

Ferguson August August Trantino in 1995 and 1998. examined evaluation, highly Ferguson supportive In his earlier was release, finding Trantino’s of well a “combination established treatment, supports, ongoing age social motivation for [would] likely In reaching most outcome.” this lead to a successful conclusion, pos- Ferguson apparently perceived that Trantino high sessed “a level of moral at the time murdered standards” he Gary Ferguson Officers that it Peter Voto Tedesco. observed “quite experiencing drug a [Trantino] was conceivable was induced offense,” psychotic when he could state committed which explain contrary crime “so how he was able to commit a brutal digress unreality I his moral character.” to note the aura enigmatic undisputed surrounds this statement. It is that at the philandering time the committed wife crimes were Trantino was harboring abuser who two killers and com- was wanted who had burglaries In string light mitted and robberies. of these circumstances, Ferguson’s statement that Trantino’s crimes were contrary “so utterly to his moral confounding. character” is event, any Ferguson supportive was less of Trantino’s release August in his 1998 evaluation. continuing While to view as possibility, a reasonable Ferguson psychological observed that testing revealed personality suggestive antisocial “deeply traits ingrained pathology.” character Ferguson reported that “Ror- schach results quality revealfed] a self-absorbed tending] ... dominate [Trantino’s] view of the world.” thinking process was said to be logic faulty judg- “marked flawed or Significantly, ment.” Ferguson “very noted that Trantino was lax controlling about displays,” emotional and that he “a negative rather probably angry person.” Ferguson concluded aspects “[t]he antisocial personality of [Trantino’s] [were] undeniable” and “difficult to treat.”

Ferguson ultimately against releasing recommended testimony 2,1999 his before the Parole Board on June and June presentation, 1999. In Ferguson his history summarized the of evaluations, psychological Trantino’s noting that of the fourteen in- examinations, depth only supportive four were of Of the forty-two evaluations, cursory thirty-five supportive pa- were of Ferguson role. attributed ingratiat- this difference to Trantino’s ing personality which tended to mask the inmate’s antisocial personality traits.

Ferguson testified that Trantino’s mental condition was marked personality “narcissistic” and “antisocial disorders.” In addi- tion, Ferguson many asserted that Trantino demonstrated of the traits common to personality, a “borderline” a far more severe pathology. Specifically, Ferguson personali- found that Trantino’s (1) ty (2) exhibited interpersonal relationships, unstable unstable (3) (4) (5) self-image, moodiness, impulsiveness, feelings chronic of (6) (7) emptiness, difficulty controlling anger, paranoia. and It that, experts be noted while most of the who had examined years agreed Trantino over the that he suffered from narcissistic disorders, and antisocial only Ferguson suggested behavior According to Fer- diagnosis personality. of borderline additional symptoms, thus “overlapping” harbor illnesses guson, three experts to a accounting render similar for the failure other personality finding as to disorder. borderline disregard Ferguson’s may be perhaps it reasonable While disorder, personality the thrust of diagnosis concerning borderline amalgam personality expert’s conclusion that Trantino’s “explosive” “violent” potentially make traits the inmate similarly ignored. Ferguson be concluded individual cannot “particularly dangerous individual” of his Trantino was a because clearly poten- “unpredictability” “unwillingness to examine and his Ferguson noted that Trantino was problems tial in the future.” released, ego” if with to his bound be confronted “blows controls,” pose narcissism would serious that absent “external problems. behavioral

Ferguson recognizing potential was not alone Berrill, nationally recognized expert Dr. violence. Naftali suffering psychology, diagnosed forensic and clinical Trantino as personality from a narcissistic and antisocial disorder.1 While majority along notes its concern Berrill with Brennan and Pappar ozzi, did not examine The record these Trantino. discloses personally psychological including witnesses Trantino's reviewed history, approxi carefully psychological worth thirty years mately probation reports, psychiatric testing. psychological issue must be considered within its This reports, historical context Court revised our Evidence to Rules of Supreme formulating that in his or her an reliable mandate may opinion, expert rely upon Biunno, evidence, such as others. Current N.J. Rules documentary reports (2000). which Evidence, rule, comment on N.J.R.E. 703 That carried over into Evidence, rules of Rules has our new evidence and in the Federal appears Ventriglia, been in New v. 324 Costantino consistently Jersey, N.J.Super. applied 1999); (App.Div. 450, Dishon, 254, 735 v. 437, A.2d 1180 State 297 N.J.Super. (App.Div.), 280-81, denied, 144, 687 A.2d 1074 149 N.J. 693 A.2d 112 certif. (1997); 1, 17-18, Glowacki 270 636 v. Underwood Memorial N.J.Super. Hosp., 1994); (App.Div. 487, Smith, 521, 527 State v. 262 621 A.2d 493 A.2d N.J.Super. (1993); (App.Div.), 476, N.J. Dev. denied, 134 634 A.2d 523 Industrial certif. 281, 296-97, 222 Co., Assoc. v. Commercial Union Lines Ins. Surplus N.J.Super. (App.Div.1988); Maggiore, v. 273, 283, 536 A.2d 787 Correa 196 482 N.J.Super. (App.Div.1984); 262, 264, 192 v. A.2d 804 Stevens, A.2d State 136 345 N.J.Super.

205 discounting possibility personality, borderline Berrill found that Trantino’s narcissistic traits him “disruptive,” made “manipulative,” and “confrontational.” Berrill testified that Tran- tino enveloped had been psycho-babble” “into a culture of because of his in psychological involvement testing years. over the Be- intelligence, cause of his Trantino had been able to enlist the support by masking of others his antisocial traits. Berrill ex- plained people afflicted with degree Trantino’s of narcissism empathy “lack “appreciate other[s]” and cannot anyone else’s needs or met, wants.” If their “they needs are not feel somewhat diminished,” insulted or and there is a “tremendous emotional response anger” they to the Berrill, According feel. people like Trantino “stand humanity.” They outside of cannot “make a connection people’s pain [with] other or ... .... They hurt cannot connect ... [with] the full pain, ramifications of the destruction they [and] the chaos people’s cause in other lives.” Berrill stressed that Trantino’s per- narcissism and antisocial sonality extremely disorders were According difficult to treat. Berrill, people harboring fully appreciate these traits cannot “the they notion” that predatory act “[a] fashion.” explained Berrill that Trantino’s condition “nearly impossible to treat” because he so far “stand[s] outside humanity.” the common definition of poignantly phrased Berrill, As point “[t]here is no end to this game; it is a lifetime [affliction].”

Berrill alleged considered inability to recall the crime major stumbling block to By clinging treatment. to the fiction (App.Div.1975), and the federal Southland Sod v. Farms Stover Seed circuits. (9th Cir.1997); Co., 1134, 108 F.3d 1142 Wilson Assoc., 160, James 965 F.2d (7th 1992); Durflinger (10th 172-73 Cir. Artiles, v. 727 888, F.2d 892-93 Cir. 1984); (7th Cir.1981); United States Lawson, v. 653 F.2d 299, 301-302 United (3d Cir.1981); Hill, States v. F.2d 512, 515-16 United Morrison, States v. (1st Cir.1976); 1089, F.2d 1094-95 Partin, United States v. 750, 493 F.2d 764-65 (5th Cir.1974); (5th Cir.1972); United States v. F.2d 705, 706-707 Harper, (5th Cir.), Birdsell v. States, United 346 F.2d 775, 779-80 denied, cert. 382 U.S. (1965), reh’g 963, 449, 86 S.Ct. 15 L.Ed.22d366 denied, 383 900, U.S. 86 S.Ct. (1966); Carrington 15 L.Ed.2d 680 Board, v. Civil Aeronautics 337 F.2d (4th 1964); (D.C.Cir.1962). Cir. Jenkins v. United States, 307 F.2d 641-42 drug-induced killing result victims was the

that the the “having people episode, see[ ] avoid other psychotic Trantino could accepted explained that while Trantino monster.” Berrill him as a sense, superficial in a “there no [was] for the crime responsibility genuine being remorseful.” Berrill added sense of amnesia,” confronting Trantino could avoid “us[ing] the notion of culpability. Psycholo- testimony of the Parole Board’s Assistant Chief O’Sullivan, Ferguson gist, essentially mirrored that of Mark a PCL-R particulars. Berrill in various O’Sullivan administered shortly parole hearing. The PCL-R Trantino before the test on personality widely psychopathic method to measure is a used test twenty upon based the The PCL-R scale examines issues traits. thirty the subject’s experience, with a score as cutoff entire life may reliably psychopath.” an be classified as a “at which inmate twenty-three. typical generally A inmate scores a on to determine The test has been used numerous occasions personality general, traits. relative- scored However, ly validity the of the earlier test low on scale. depended largely known on amount of information to results subject’s experiences. concerning the life Unlike the the tester occasion, prior testing, had on the most recent O’Sullivan PCL-R to him York available all of records New years’ “forty-plus O’Sullivanthus reviewed the worth authorities. evaluations, decisions, transcripts of psychological court crime transcripts photographs, parole hearings, parole scene deci- sions, articles, newspaper appearances” media and other source thirty-three. final O’Sullivan information. Trantino’s score concluded, information, research, “based clinical on PCL- score, suggest a poor R ... would be [Trantino] indicators “psychopaths released].” risk have tend- [if O’Sullivan noted higher higher ed recidivate at a and with a rate of to rate violence,” thirty-three placed him in and that Trantino’s score of percentile ninety-first of all inmates with reference their potential if released recidivate presented pertained Much of the evidence to the Parole Board prison Papparozzi, Trantino’s excellent record. Dr. Mario Policy Associate Director of Criminal Justice Center at the College presented Jersey, of New testimony concerning the “role long that term infraction-free behavior in setting an institutional may predicting have on future Papparozzi criminal behavior.” explained “just that because someone is infraction-free in an period institutional a setting for of time” does not mean that “if ____” the individual [he] is released will remain infraction free Papparozzi noted inmates have numerous “deterrent factors” institution, in an such constraining but that influences are substan- tially parole. diluted when these individuals on are released The assessment,” witness added in terms of “actuarial risk “insti- adjustment tutional top accounting [not] is three items ... [parole] outcomes.” Papparozzi’s testimony concerning sup- risk assessment was ported by Brennan, Timothy Dr. a criminologist of and adjustment statistician. testified Brennan that “institutional tends by to be other predicting overwhelmed factors in future behavior.” explained He adept manipulating that inmates others tend to prison. behave well in In the absence of the external constraints provided by prison setting, good may the structured this behavior replicated not “prior be on Brennan noted that criminal history length prior and history of criminal tend to be the more dominant predicting factors in criminal behavior.”2 2 O'Sullivan, Berrill, majority opinions Papparozzi, The discounts of given reports parole Brennan because their were after of the denial and in the setting eligibility longstanding practice course of a future date. The question granted Parole Board is to bifurcate of whether is and the However, eligibility they parts determination of a future date. form constituent 10A:71-3.18; single of a decision. See N.J.A.C. N.J.A.C. 10A:71-3.21. If evidence proceedings setting of exoneration us in had come to the course of the a future date, eligibility undoubtedly compelling we have it. The would considered O'Sullivan, Berrill, Papparozzi, presented nature of the evidence and Bren presented during merely nan is not lessened because it was determination of the eligibility future date. legal commentary support science literature and

Social See, e.g., Brennan. Law- Papparozzi and conclusions reached Parole in O’Leary, History A F. III and Vincent rence Travis of (effec- (1976) Probation, Parole, Community Corrections 109 programs reducing recidivism of treatment tiveness correctional Morris, Imprison- The Future disappointing); Norval has been (1974) (“neither prison prisoner’s avoidance disci- ment 35 programs plinary prison training offenses nor involvement completion or with later correlated with later successful conviction”); National on criminal avoidance Conference Practice, Parole, Report Principle A Parole in Manual (1957) necessarily that there is not (“experience has shown relationship good between conduct the institution one-to-one Jacobs, Sentencing by B. parole”); James Prison and success (1982) Time, (prison- Personnel: Good UCLA L.Rev. setting may prison a not adhere ers successful in the structured of released); Schwartz, society’s Options to B. rules when Louis Constructing Sentencing System: Sentencing Guidelines Under (1981) 637, Legislative Hegemony, or 67 L.Rev. 659 Judicial Va. (there prison good is a correlation behavior “lack of between community”). good and behavior in the These conclusions also comport quintessentially with common sense. Prison is a abnor- by ... a with its own mal environment “dominated subculture Jacobs, Sentencing B. by norms and values.” James Prison Time, Personnel: Good 30 UCLA L.Rev. 264. “Individuals incapable coping extraordinary pressures prison of with the of life may cope enough everyday well with the of life on the stresses Conversely, many Ibid. “there are who streets.” individuals have prison [setting] ‘prosper’ learned to and even in [the] survive who imposed by will larger cannot or not adhere to the rules our society.”3 Ibid. 3 Legislature our the In 1979 framework to statutory necessary adopted program. a “contract N.J.S.A. 30:4 — 123.67. See Contract

implement parole” for for allows the of release date an inmate pre-determination provided program the behavioral, inmate with a of educational and rehabilitative complies

209 By summary, suggest this brief I do not mean to the experts concerning pros uniform in their views were the dismal 4 if pect experts’ respective of Trantino The success is released. wildly subject. opinions diverged example, on the For Rosenfeld, expert, Barry Psychologist Dr. Senior for the the New goals designed prison post- to reduce misconduct and enhance the inmate’s Parker, Process, community adjustment. Highlights release William the Parole of Parole, Probation, (3rd. Ed.1984); Community and Correction 144 James O. Rauh, Legal Carol Parole. Finckenauer and Contract Some Rehabilitative and Release, AgreementProgramming Cap. Issues Mutual Parole U.L.Rev. for (1976). Although Legislature provided guidelines requisite the the for establishing Department program, the a contract Corrections the implement necessary regulations bring Parole Board not to chose to such a Board, program Raymond N.J.Super. to fruition. See v. State Parole N.J. event, (App.Div.1987). any 534 A.2d 741 In standard is not whether prison. good his Trantino has earned release conduct in is whether It he presents unjustifiable an risk if of recidivism released. majority by ignoring asserts that the Parole Board erred Dr. Michael view, report. my report rejecting. In Weiner’s this was a well worth As noted Board, report pertained adaptation psychological the Parole to the house, halfway setting structured Trantino to the of a rather than likelihood community. that Trantino would commit another crime if released into the ultimately Although Weiner concluded that Trantino's likelihood recidivism low, from, relatively wholly I note that the conclusion is disembodied with, psychologist’s specific findings. inconsistent report, Weiner noted that his examination of "found more impressive manipulativeness, empathy, grandiosity, evidence for lack of lack or guilt, lying, accept responsibility [and] remorse or failure his own to ac- report continuing personality, tions----’’ The detailed Trantino’s narcissistic finding "intensely egocentric” "likely exploitive be him to be "degree future.” Weiner observed that the of his self-centeredness such that support system relapse he is a considerable risk to erode his into others,” “eventually criminality.” exploiting graduate which would into history” "pro- Weiner further stated that Trantino’s incessant "revision of responsibility mote the of his him notion innocence” allowed to avoid all for the he murders committed. Weiner found that Trantino remains to "unremorseful array people directly indirectly" only of he has and victimized and exhibits fact, Trantino, "superficial "speaks empathy.” In Weiner noted that of the Sgt. police utterly murdered Detective Voto and trainee Tedesco with no emotion that, compassion away ”[p]eeling or for either of them.” Weiner concluded his exterior, controlling, calculating with [Trantino] remains a individual no real away, tendency explain deny, sense He of attachment. maintains the to or meaningful guilt.” minimize his sources or of shame Courts, concluded, majority Supreme “the City Criminal and

York capable will of suggest that Trantino be predictive' factors of high risk successfully present a adjusting to and does not excellent re-offending.” Among were Trantino’s the factors noted results, record, expressed by testing the views prison clinical years. over psychologists other however, uniformly positive. findings, were not He Rosenfeld’s noted, as the example, that some clinical tests such Multiphasic Inventory Multiaxal and the Minnesota Millan Clinical Personality Inventory “generated highly questionable personality self-per- that profiles.” tests indicated Trantino’s “actual These insight.” Rosenfeld conceded ception” a “marked lack disclosed ability “genuine,” cope Trantino’s if these test results are that According likely “compromised.” is with difficulties somewhat Rosenfeld, typically self-perceptions such naive with “individuals limitations!!,] insight own and are therefore vulnera- lack into their developing psychological difficulties when severe stresses ble to acknowledged also that arise and cannot be avoided.” Rosenfeld well-adjusted present psycho- attempt to himself as degree deception.” finding logically “suggested fit some While diagnosis personality pre-incarceration of antisocial that Trantino’s accurate, longer was no observed disorder Rosenfeld symptoms psychopathy grandiosity, such inmate’s “residual as attention, empathy” were consistent with a need for limited personality “narcissistic disorder.” rejected opinion finding that The Parole Board Rosenfeld’s he view, my amply the record was biased in favor of Trantino. supports example, conclusion. For Rosenfeld Parole Board’s accepted voluntarily blindly that he surren- Trantino’s statement having did not killed the victims and thus dered because he recall Perhaps is so. A completely to be innocent. believed himself supported by I better explanation, more sinister one that believe is evidence, compatriot knew in crime had bullets, he, Trantino, police killed in a hail of been too, scoring that fate. of Tranti- wished avoid So Rosenfeld’s psychologist’s no’s test the in PCL-R reveals blind faith Tranti- explanation no’s convoluted of the in the manner which crime background psychological history. occurred and Trantino’s scored in range Rosenfeld the of fifteen on the based Later, given limited information him lawyer. to Trantino’s information, additional highly derogatory respect some of it with truthfulness, to Trantino’s was to disclosed Rosenfeld. Rosenfeld nevertheless maintained that none of the information caused him Moreover, change to the appears PCL-R test result. it only Rosenfeld considered current status. It is undis- puted subject’s that the PCL-R checklist be should based on the experience. entire life denigrate

I mean analysis. do not to Dr. Nor I Rosenfeld’s do who, ignore times, findings psychologists the of other at various paroled. have recommended that Trantino should be But it is not weigh opinions our experts function to the of the and decide which of these most conclusions is the credible.5 That role of is the Appellate Parole Board. aim simply The Division’s was “to deter findings reasonably mine whether the could [Parole Board’s] have present been reached on sufficient credible in evidence the rec Johnson, ord.” v. State 42 N.J. at 199 A .2d 809. While the standard, Appellate purported apply Division legal the correct it majority repeated "selectivity" The makes reference to the of the Parole focusing only psychological supportive Board in on the evidence of its denial of clearly This criticism is unwarranted. The Board Parole considered every scrap assessing available evidence the likelihood of recidivism. overlooked, any suggest way ignored, record does not in that the Parole Board earlier, pointed opinions or crucial As undervalued evidence. I out experts wildly diverged. It was thus incumbent the Parole to deter- Board opinions accept opinions reject. mine which and which The Parole Board required surgical precision was not to make this determination or with to discuss witness, reports testimony, every describing why and statements of detail Locurto, it found some more credible than others. See State v. N.J. at 471- context, 724 A.2d 234. In that Parole Board not "selective” its evidence, necessarily consideration of the but instead was selective its deter- concerning compelling. mination what was the evidence most upon fact-finding power improperly intruded its exceeded authority Board. Parole that Parole Board’s Appellate the Division found the

Because incorrect, instinctively scrutinize the “we almost conclusion was 163,199 searchingly.” Id. at A.2d I note that 809. record more respect decision makes no reference Appellate that the Division’s O’Sullivan, Berrill, Pap- analyses provided by to the whatsoever this, rejected Beyond improperly parozzi the court or Brennan. opinion, current Ferguson’s apparently because the witness’s con- phrased he from earlier views and because his clusion differed his “potential” in terms Trantino’s vio- ultimate determination than the likelihood” of recidivism. It is lence rather “substantial Division, Board, ultimately Appellate the true that the Parole Ferguson majority, properly the the fact that could consider However, supportive initially strongly was of Trantino’s release. opinion. perpetuity the to his earlier As witness not bound candidly explained, was one of the Ferguson his 1995 evaluation Moreover, Ferguson’s psychologist. first he made as a subse- quent posed unjustifiable danger risk of opinion that Trantino an if that was available to the released was based on information not fact prepared report. Finally, he his that witness when opinion statutory language Ferguson not his in the did couch Ferguson rejecting expert’s not a sound basis for conclusion. lawyer. Appellate parsing psychologist, is.a not a The Division’s opinion he to the express of the words used to adds little ease. rest, Ferguson’s I put To the matter read and reread have testimony, and I no doubt whatsoever he considered have that danger public in terms of the a substantial to parrot required likelihood of recidivism. The was not witness statutory language in order believed. to be Appellate manifestly I thus conclude that the Division itself was accept in its the Parole Board’s conclusion mistaken failure concerning psychological pathology. majority re- peats my view, mistake. the Parole could reason- Board described, found, ably I have evidence have based manipulative, deceptive Trantino is explosive, and that these poor him traits make candidate for

B. Corroborative Facts concerning prisoner’s The final determination risk of recidi- Board, vism rests with the psychiatrists, Parole not social workers psychologists. Bd., or Jersey Trantino v. New State Parole one, N.J. at legal 711 A.2d 260. The ultimate decision is a not one, a social though guided by science even expert testimony. it is D.C., 31, 59, (1996) (role In re 146 N.J. 679 A.2d 634 of medical Cf. testimony in proceedings). commitment We have said the courts should take care not “to abdicate decision-making responsi- [their] bility experts.” G.B., 62, 87, Registrant In re 147 N.J. 685 A.2d (1996). principle applies equal This with force to administra- agencies. tive agencies Administrative responsi- bear the ultimate bility they context, for the decisions render. In that it is at least arguable expert testimony not, may I have described alone, standing support serve as a sufficient basis to the Parole Board’s denial of Trantino’s release. record, however, tending contains facts to corroborate the

experts’ opinion dangerous person likely Trantino is a to granted if parole, recidivate deceptive, manipulative because he is empathy and lacks many for others. It is true that of these dredged incidents are past perhaps from Trantino’s dark and were importance inflated in in the Parole Board’s written determina- tions. separately, Consideration of these various incidents which here, may is Trantino’s sufficiently thesis show no one in itself is meaningful. combination, But in coupled and with Trantino’s psychological state, history and they current mental tend to experts’ prognostication corroborate the danger. of First, there is Trantino’s concerning convenient amnesia his role opinion, the commission of the crimes. In our earlier we noted presence the in the record of memory evidence that “Trantino’s consistent, long-standing loss is genuine.” and Trantino v. New Board, Jersey State Parole 154 N.J. at 711 A.2d 260. We also observed that the tending record contained evidence to show that acceptance responsibility for his crimes was “sincere Trantino’s did I that these statements not legitimate.” Ibid. am satisfied subject, revisiting as Board from the foreclose Parole variety and factual majority asserts. In a of circumstances set- containing with appellate presented courts are often records tings, pointed As I supporting inconsistent theses. substantial evidence earlier, job pick it is our and choose which thesis is out not judges ordinarily performed by trial That role is accurate. agencies, and we are bound to defer their administrative they if are reasonable. conclusions inability that Trantino’s to recall the The Parole Board found abstract, feigned, his the crime was circumstances guilt meaning- acknowledgment of was not obtuse and convoluted support ful. that conclusion the record. There substantial for voluntary be defense at trial was It is to recalled that Trantino’s Trantino, 358, 362-63, 209 A.2d 117 intoxication. State v. N.J. (1965). pills Trantino testified that he took two Dexedrine day quantity liquor of the consumed a considerable any at A.2d He homicides. Id. 117. denied recollection officers, only slaying saying he of the recalled loud light explosion confusion followed of wild sound and within 362-63, accomplice appeared devil. which his to be a Id. at prosecution presented strong debunking 117. The A.2d evidence claim that he was the influence of alcohol and under drugs he he not recall when killed the victims and that could example, question. although events For Trantino disavowed homicides, driver, getaway Patricia Mac- awareness Phail, helped City, who him flee to York testified that he told New policemen help accomplice, her he had murdered the Frank Falco, 117. who was wanted murder. Id. 209 A.2d At trial, voluntary the time of the intoxication could be considered determining performed whether the defendant in fact the mental operations prosecution required prove which the to to elevate degree degree. murder in the second to murder the first Id. at trial, 117. proof necessary 209 A.2d Also at the time of the to degree convict a defendant of first murder was far more substan necessary prove tial than degree first murder under current The required “premedi laws. State then was to establish tation, deliberation and wilfulness in the design execution the Hudson, (1962). kill.” State v. 364, 369, 38 N.J. 185 A.2d 1 In event, any jury accordingly, the was instructed and the verdict of degree “express[ed][its] rejection murder the first of [Tranti testimony expert opinion and the it.” State v. resting upon no’s] Trantino, 369, 209 44 N.J. at A.2d 117. resulting appeal, the “principal emphasis” was on killings

his claim that drug-induced the were the result aof psychotic episode Id. at precisely that he could not recall. rejecting argument, 209 A.2d 117. In Chief Justice Weintraub wrote: jury There was evidence from which the could conclude that Trantino ample going doing. Sergeant knew what was on and what he was He did not menace gun.

Voto until the officer discovered the From what defendant told Patricia jury the could find he MacPhail, feared arrests would follow of the discovery gun charge and that Falco would have to face a murder New York. Trantino’s killings own as to events before and after the testimony immediately immediately could be found to be inconsistent with the claim of alcoholic at the time of stupor killings. something although He knew there was to run from, and he he says jury not know what it was, does could as Mrs. MacPhail’s conclude, testimony revealed, that defendant knew he had killed the In fact none of the policemen. sought witnesses who at were nor a milkman from whom tavern, defendant ride after the murders, the claim of alcoholic shortly supported prostration. Id. 209 A.2d 117. point jury, having to be stressed here is that a

opportunity testify, rejected to see and hear Trantino the claim question. that he put could not recall the events in To it more bluntly, jury drug-induced psy- viewed Trantino’s claim of a episode, nothing chotic and saw but the heart of Tran- darkness. attempts accept responsibility tino’s later for the crimes while denying any shootings merely recollection resurrected a claim rejected by jury. earlier considered and a well-informed No change amount of historical revisionism can that basic fact. this, Beyond reasonably questioned the Parole Board could have accuracy memory our statement that “Trantino’s loss is 216

consistent, genuine.” Jersey v. long-standing and Trantino New fact, Board, 35, point In 260. of Parole 154 N.J. 711 A.2d State postconvic- in his At his Trantino has wavered claim of amnesia. 1967, unequiv- hearing example, for Trantino testified tion relief parole hearing in ocally that not kill the At his he did victims. 1980, killing of the recounted that he was “innocent” Trantino policemen, noting that he had left the tavern before the crimes repeated version when he testified were committed. Trantino that parole hearing at his in 1982. come to with the brutal crimes he

Trantino’s failure to terms important I do not that a committed several reasons. doubt enlarged prisoner be sentence should not because continues greater he is But the demand is the Parole insist innocent. prospect Board take the man and his for recidivism. into account Ivan, 197, several, v. punishment The aims of are State 33 N.J. 199-202, (1960), sentence, hope 162 is that the A.2d 851 but the severe, reshape assaying pros or the the mild will offender. recidivism, pects for Parole look to man as Board must offense, and it is well as here that inmate’s attitude contexts, highly variety of toward the truth is relevant. In a we recognized guilt acknowledgment have candid is the first 493, Poteet, 497, sign redemption. State v. 61 N.J. A.2d See 295 (1972); Forcella, 263, 275, (1968), v. 52 245 A.2d State N.J. 181 948, 2278, part, Jersey, rev’d in Funicello v. New 403 U.S. 91 S.Ct. (1971); Stasio, 247, 260, 29 L.Ed.2d v. 49 N.J. State De denied, A.2d cert. 389 U.S. 88 S.Ct. 19 L.Ed.2d 89 (1967). acceptance responsibility claiming

Trantino’s bland while redemptive. amnesia is nor It is neither candid instead both manipulative deceptive. question I leave the moral blame- instead, I, philosophers. point worthiness to Dr. to the Berrill’s opinion alleged inability to recall crimes consti- strong pathology. tutes of continued evidence testimony disingenuous regarding was also his wife, relationship his first Helene. Trantino admitted that he with husband, having an ideal had sexual intercourse with was less than during couple’s honeymoon and thereafter another woman engaging in He that he a series of extramarital affairs. testified marriage, struck Helene “three or four times” the course of the confidently but he assured the Parole Board that she would not wrong. characterize his conduct toward her as “abusive.” He was authorities, In her statement to New York Helene main- tained that Trantino often beat her. Helene recounted that she sexually submitted to Trantino because of her fear as to what he do if she to refuse his demands. would were significance Trantino also either minimized or lied about the strong-armed robbery payroll his 1956 of the dentist’s and the injuries upon again inflicted the victim. This incident indicates in penchant mitigate Trantino’s to his involvement crime. It also suggests inability appreciate impact of his conduct on his others.

Coneededly, many years ago. They place these events took they composite relevant to the nevertheless are because contribute state, man,” picture mental and his of the “whole his current prospects They not in the fact that for the future. have resonance they they prospect repeated be if occurred or will Rather, Trantino is released. this evidence confirms Dr. BerrilTs appreciate opinion dangerous that Trantino is because he cannot affects others. It also confirms the fact that how his conduct testimony the Parole Trantino was less than truthful his before Board.

Perhaps emphasis placed much has been on the Talbot Hall too remains, however, simple present at incident. The fact that those veneer, the scene were able to discern a crack Trantino’s side kept personality that he otherwise hidden. Trantino must microscope. Yet he refused to have known that he was under a Moreover, complete psychological testing. Trantino either testimony incident in his at the Parole minimized or lied about the hearing. Board empathy in his significant lack of

Finally, Trantino exhibited a pertaining to the to write another book preliminary decision incident as disclos- majority’s interpretation of this killings. The Obviously by the record. ing is belied Trantino’s reformation Amendment right publish another book. Trantino has a First itself, However, publication with not with the but the concern lies may further recognize that such action cause Trantino’s failure noted the Parole trauma to the victims’ families. As emotional Board, feelings disregard for the of the victims’ families findings Dr. Berill’s that Trantino lacks tended to corroborate his actions others. capacity to understand how affect evidence, I Board light of this do not believe that Parole finding there is a substantial wide of the mark went if Trantino is released. Resolution of likelihood of recidivism required a reconciliation of these issues the Parole Board public security competing social values. The interest of Believing personal freedom. war with the concern for Trantino’s public safety paramount, the Parole Board that the interest of was by denying sought to alleviate tension between these values fairly say I Parole Board Trantino’s release. cannot that the wrong.

III. my colleagues my between view and that of is The difference good not one of intentions. We all wish to accommodate safety parole system. public interests of and those of our Our public security equally commitment to the demands of is shared. question The Nor do we differ our devotion to the rule law. prevail, is not whether the rule of law shall but where that laws, by principle government one of but it run takes us. Our is is experiences viewpoints. My men and women with different majority grounded approach disagreement with the in how we my experience, the evidence. claims of rehabilitation con- numbing frequency victed offenders come to the court with story redemption rubber-stamp regularity. The of sin and is as easy as It is all too to succumb to the chimeric old humankind. good ultimately triumphs in the human soul. vision that over evil bites, reality The But and too often the truth lies elsewhere. Board viewed Trantino’s claims of rehabilitation with a Parole healthy skepticism. Appellate dose of So do 1.1 would reverse the Division’s decision and reinstate the Parole Board’s denial of Appellate Division for release. I would remand the matter to the purpose reviewing Department limited Corrections’ relating placement penal system. actions to Trantino’s STEIN, For modification affirmance —Justices COLEMAN, HAVEY, Judge assigned temporarily LONG and —4. BAIME, Judge assigned temporarily

For reversal — —1.

764 A.2d 1002 MISCHEL, THE MATTER OF F. IN FELICE AT AN ATTORNEY LAW. January 2001.

ORDER Disciplinary having its Review Board filed with Court YORK, concluding that FELICE F. MISCHEL of NEW decision YORK, NEW who was admitted to the bar this State in temporarily suspended practice thereafter was from the who 13(b) pursuant R. of this Court dated of law Order 1:20— time, 11, 1999, suspended at should March and who remains this years suspended practice period of two be from the of law for 8.4(b) (commission violating of a criminal act that reflects RPC lawyer) adversely honesty, on her trustworthiness or fitness as 8.4(c) (conduct fraud, involving dishonesty, or deceit and RPC misrepresentation); notes terms served death row in He also prison. prison (15 (15 years); years); Edgar Davis brothers Smith defendants: Reynolds Ralph (15 (15 (15 years); years); years); Mathis Jesse Wilbert Sinclair Martin Wilson (15 (20 (15 years); years); years); Farrow, Daniel Charles Holland Artis Thomas (16 years). Jr. II, supra, 347, 104, Trantino 89 N.J. acknowledged 446 A.2d we 352, 1979. Id. at eligible parole that for in Trantino first became 446 A.2d 104. That fact was uncontested. II, 366, 104, Trantino id. at recognized in We also 446 A.2d that governing grant parole the standard under the 1979 Act is eligible parole parole inmates for “shall be released on at the parole eligibility, by preponderance time of unless a [it shown] of the evidence that there is a substantial likelihood that parole inmate commit a ... if will crime released on at such time.” N.J.S.A. 30:4-123-53. Accordingly, controlling the critical and question appeal in preponderance this is whether a of the credible supports in evidence the record the Parole Board’s determination a there is substantial likelihood that Trantino will commit a crime if he is released on II summary A dispositions of the Parole Board’s of Trantino’s prior parole provide efforts to achieve status will a context for our review of the evidence considered the Parole Board. eligible parole Trantino first became consideration 1979. Operating statute, under the former the Parole Board parole application denied his first and denied a second application April ground punitive 1980 on the aspect “the II, this sentence has not been satisfied.” supra, 89 N.J. 446 A.2d 104. proceeding June a L. parole law, 1979, 441, conducted under the current single c. sitting hearing Board member parole, as officer recommended finding “no substantial [of likelihood future criminal conduct].” Id. Pursuant to N.J.S.A. 30:4-123.55b, the Board’s Chairman hearing affirmed the approved officer’s recommendation pa

Notes

notes Parole had in its files “for that the Board years” summarizing a memorandum New York file sent County Guy question Bergen then Calais. On the Prosecutor abuse, spousal stated: that memorandum August The wife was and she stated that her husband had left 26, 1963 interviewed clothing clothing her two before and removed her and her son’s weeks she had from the apartment. August In an with the wife it was revealed for several interview subject months times a had abused her several week. prior, physically

Case Details

Case Name: Trantino v. New Jersey State Parole Board

Court Name: Supreme Court of New Jersey

Date Published: Jan 18, 2001

Citation: 764 A.2d 940

Court Abbreviation: N.J.