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

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5645-16T2

SUNDIATA ACOLI, a/k/a

CLARK EDWARD SQUIRE,

APPROVED FOR PUBLICATION

Appellant,

December 27, 2019

v. APPELLATE DIVISION

NEW JERSEY STATE

PAROLE BOARD,

Respondent.

_____________________________

Argued September 9, 2019 – Decided December 27, 2019

Before Judges Fasciale, Rothstadt and Moynihan

(Judge Rothstadt dissenting).

On appeal from the New Jersey State Parole Board.

Bruce Ira Afran argued the cause for appellant.

Christopher Josephson, Deputy Attorney General,

argued the cause for respondent (Gurbir S. Grewal,

Attorney General, attorney; Melissa H. Raksa,

Assistant Attorney General, of counsel; Christopher

Josephson, on the brief).

The opinion of the court was delivered by

FASCIALE, P.J.A.D.

In accordance with remand instructions from the Supreme Court, Acoli

v. N.J. State Parole Bd. (Acoli II), 224 N.J. 213, 217 (2016), the New Jersey

State Parole Board (the Board) conducted a full Board in-person hearing to

complete Acoli's administrative parole process. The Court remanded solely on

procedural grounds, disagreeing with our earlier determination that a full

Board hearing was not required. Id. at 232. Acoli—a convicted murderer of a

State Trooper—appeals from the Board's unanimous1 June 21, 2017 final

agency decision (final decision) denying parole and imposing a 180-month

Future Eligibility Term (FET).

At the remand hearing, the Board extensively questioned Acoli about a

multitude of subjects, including his prior assertion that he "blacked out," which

Acoli maintained rendered him unable to remember how the trooper died. But

at the full Board hearing, Acoli provided these details: he explained that while

he struggled with the trooper, another trooper "probably" shot the trooper with

a "friendly fire shot." That explanation—which necessarily required that he

was conscious during the struggle when the "friendly fire shot" occurred—

1

The individuals who comprised two- and three-member Board panels, which

previously denied parole, did not participate in the full Board hearing. See

N.J.S.A. 30:4-123.58(a) (stating that any Board member who participated in

the decision from which the appeal is taken may not participate in the

disposition of that appeal).

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contradicted Acoli's previous assertion that a bullet grazed his head, rendering

him temporarily unconscious.

Our review of the final decision comes to us on a different record. In

addition to considering a critical confidential report by a new psychologist, the

Board extensively questioned Acoli, which is demonstrated by the 286-page

transcript of the hearing. The Board considered the entire administrative paper

record, the new psychological evaluation, and, importantly, Acoli's own

responses, leading it to conclude—based on a preponderance of the evidence—

that there was a substantial likelihood that Acoli would commit another crime

if paroled.

On this more developed record, we conclude the Board applied the

correct law, the record contains substantial credible evidence to support its

findings, and there is no basis to determine that the Board clearly erred in

reaching its conclusion. The Board's final decision is not arbitrary, capricious,

or unreasonable.

We therefore affirm.

I.

In 1973, Acoli murdered State Trooper Werner Foerster and assaulted

State Trooper James Harper. After a lengthy trial, a jury found him guilty of

A-5645-16T2

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"murder; atrocious assault and battery; assault and battery; assault with an

offensive weapon; assault with intent to kill; illegal possession of a weapon;

and armed robbery." Id. at 218. Acoli received life in prison for the murder

conviction. The judge imposed consecutive sentences of "ten to twelve years

of imprisonment for his conviction for assault with intent to kill; two to three

years of imprisonment [for his conviction] for illegal possession of a weapon;

and twelve to fifteen years of imprisonment [for his conviction] for [the]

armed robbery." Ibid. The aggregate sentence equaled life plus twenty-four to

thirty years. Ibid.

In 2010, Acoli became eligible for parole. 2 A hearing officer referred

the matter to a Board panel for a hearing. On March 4, 2010, a two-member

Board panel interviewed Acoli and concluded that "a substantial likelihood

exists that [he] would commit a new crime if released on parole at this time."

Ibid. On July 7, 2010, a three-member Board panel set a 120-month FET.

2

The Board previously denied Acoli parole twice. In a decision dated January

3, 1994, the Board cited Acoli's "continued antisocial behavior" and his failure

to "change[] appreciably during [his] incarceration" as factors contributing to

his substantial likelihood to commit a new crime if released. And in its written

decision dated August 11, 2004, the Board noted that "[Acoli's] denials and

version of events are contrary to logic and to the evidence at trial," and that he

was "not credible on numerous factual matters." The Board denied him parole

because of this, and because the Board thought that Acoli's "radical and

revolutionary politics have not fundamentally changed."

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4

Acoli appealed to the full Board, which conducted a "paper hearing."

That hearing was substantially different than the Board's hearing on remand.

The "paper hearing" entailed consideration of the record before the hearing

officer and the two- and three-member panels. Unlike in the full Board

hearing leading to this appeal, the Board did not hear testimony or create its

own record. On February 23, 2011, the Board upheld the denial of parole and

the establishment of the 120-month FET.

Acoli appealed to us. Looking at the administrative record and the

merits of the Board's February 23, 2011 decision, we reversed the denial of

parole and concluded the Board's basis for denying parole was arbitrary. This

court then ordered the Board to set conditions for Acoli's parole. See Acoli v.

N.J. State Parole Bd. (Acoli I), No. A-3575-10 (App. Div. Sept. 29, 2014) (slip

op. at 10). On procedural grounds, the Board unsuccessfully sought

reconsideration of our judgment, solely contending that a full Board in-person

hearing was required before proceeding directly to release.

The Supreme Court granted the Board's petition for certification,

interpreted N.J.S.A. 30:4-123.55(f),3 and agreed with the Board that it was

3

The statute provides in pertinent part:

(continued)

A-5645-16T2

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entitled to conduct a full hearing. The Court remanded with instructions for a

"full Board in-person review and hearing of a convicted murderer prior to his

or her parole release." Acoli II, 224 N.J. at 217. As to the merits of Acoli's

parole, the Court stated:

We express no view on what the outcome of that full

assessment should be. Whatever it shall be, there will

be a right of appeal to the Appellate Division. If

Acoli is denied parole, then that would be the

appropriate time at which the Appellate Division

might have occasion to consider whether the unusual

remedy of judicially ordered parole of a convicted

murderer might be in order. However, that possibility

must await completion of the parole process in its

entirety.

[Acoli II, 224 N.J. at 232.]

On June 8, 2016, the Board conducted the hearing. Board members

extensively questioned Acoli and gave him an opportunity to read a prepared

statement. The Board considered the entire record before it, including the new

(continued)

Notwithstanding the provision of any other law to the

contrary, if an inmate incarcerated for murder is

recommended for parole by the assigned board

member or the appropriate board panel, parole shall

not be certified until a majority of the full parole

board, after conducting a hearing, concurs in that

recommendation. The board shall notify the victim's

family of that hearing and family members shall be

afforded the opportunity to testify in person or to

submit written or videotaped statements.

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6

confidential psychological evaluation, which had a significant impact on the

Board's decision.

On June 8, 2016, the full Board denied parole. On that date, the Board

rendered its "Panel Decision," which reflects that the Board found—once

again—that there existed "a substantial likelihood" that Acoli "would commit a

new crime if released on parole." After further documenting the consideration

of multiple mitigating factors, and as part of its conclusion that Acoli lacked

insight into his criminal behavior, the Board stated:

[Acoli] cannot articulate how he has changed his anti-

social thought patterns. [He] [p]resents as continuing

to believe his actions were justified. [He] has no

understanding why he believed violence was

necessary to affect social change, nor does he

demonstrate understanding how his criminal thinking

pattern has changed.

The next day, the Board notified Acoli that "establishing a [FET] within

the Board's presumptive schedule may be inappropriate due to your lack of

satisfactory progress in reducing the likelihood of future criminal behavior."

The Board then referred the FET issue to the full Board. On November 16,

2016, the full Board established a 180-month FET, and on December 22, 2016,

the Board rendered a comprehensive written decision for its FET

determination.

A-5645-16T2

7

In its final decision (addressed to defense counsel), the Board stated it

was responding to Acoli's "administrative appeal . . . of the Board's June 8,

2016 decision to deny [Acoli] parole[,] and the Board's November 16, 2016

decision[,]" which established the 180-month FET. The Board rejected Acoli's

argument that it failed to apply the "post-August 19, 1997" parole release

standards. The Board stated:

In accordance with New Jersey statutes,

Administrative Code, and court decisions, the standard

for parole where the committed offense(s) occurred

prior to August 19, 1997, is whether the

preponderance of evidence indicates a substantial

likelihood that an inmate would commit a new crime

if released on parole. The Board finds that [Acoli's]

commitment offenses occurred in 1973 and that

therefore, it is the "substantial likelihood" standard

that applies to his case.

In its final decision, the Board acknowledged Acoli's additional

contentions pertinent to the denial of parole. Acoli argued that the Board

withheld confidential information, excluded favorable information, violat ed

his due process rights, ignored material facts, and rendered an excessive FET.

The Board acknowledged those arguments and addressed them in the final

decision.

As to Acoli's assertion that the Board violated his due process rights, the

Board explained that it "carefully and thoroughly reviewed all the reports

contained in the case file," and reached its decision "on the totality of the

A-5645-16T2

8

information in the administrative record." The Board noted that as part of the

full hearing on remand, it gave Acoli the opportunity to participate and provide

information. Indeed, Board members thoroughly questioned Acoli, and he

read a prepared statement that he and his friend drafted. The Board contended

it did not violate his due process rights because it denied parole after fully

applying the requirements of N.J.A.C. 10A:71-3.11 (setting forth multiple

factors considered at parole hearings).

In the final decision, the Board rejected Acoli's argument that it failed to

consider material facts. Acoli maintained that the Board did not consider his

age, his lack of prior convictions for violent crimes, his listing as infraction -

free in a lesser security status, his good institutional work record, and his

parole plans. Acoli specifically contended that he led a crime-free life for

roughly forty years, and that he took "full responsibility" for the trooper's

death. The Board explained its reasons for denying parole, which we have

partially quoted:

[The] serious nature of offense (homicide of a law

enforcement officer); prior offense record noted;

nature of criminal record increasingly more serious;

committed to incarceration for multiple offenses; prior

opportunity on probation has failed to deter criminal

behavior; and commission of current offense while on

recognizance bail. Furthermore, based on [Acoli's]

responses to questions posed by the Board at the time

of the [full] hearing [on remand], the pre-parole

report, and the documentation in the case file, the

A-5645-16T2

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Board determined that [Acoli] exhibited insufficient

problem resolution, specifically, that he lacked insight

into his criminal behavior; that he denied his offense,

and that he minimized his conduct. The Board

[repeated], "[Acoli] cannot articulate how he has

changed his anti-social thought patterns. [Patterns] as

continuing to believe his actions were justified. Has

no understanding why he believed violence was

necessary to affect social change, nor does he

demonstrate understanding how his criminal thinking

pattern has changed." The Board . . . relied on

confidential material and, pursuant to N.J.A.C.

10A:71-2.2(c), identified for the record the nature of

the confidential information. The Board also

considered [Acoli's] risk assessment evaluation score

of [twenty], which indicates a moderate risk of

recidivism.

Additionally, the Board noted as mitigation: minimal

offense record; all opportunities on community

supervision completed without violations; infraction

free since last panel; participation in programs specific

to behavior; and participation in institutional

programs.

....

[T]he Board reviewed [Acoli's] entire record in

rendering its decision. His age and personal and

medical histories; his criminal history; his record of

rehabilitative program participation (including each of

those programs referenced in [his] [administrative]

appeal); his current custody status and institutional

work history; and his infraction-free status (since his

last Board panel hearing); are all matters of record

. . . . [T]he Board appropriately noted as mitigation on

the Notice of Decision: minimal offense record; all

opportunities on community supervision completed

without violations; infraction free since last panel;

participation in programs specific to behavior; and

A-5645-16T2

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participation in institutional programs. As a result, the

Board . . . did not solely base its decision to deny

parole on the negative aspects in the record, rather, the

Board . . . based its decision on the entire record

governed by the factors set forth in . . . N.J.A.C.

10A:71-3.11.

....

[T]he Board . . . consider[ed] [Acoli's] parole plans

. . . which includ[ed] his proposed place of residence

and his employment plans [and] noted on the Case

Assessment at the time of his [i]nitial [p]arole

[h]earing . . . . Additionally, the Board routinely

reviews the plans submitted by the inmate for

consideration and is therefore aware of significant

information such as employment plans, residence,

community and family support.

....

Lastly, [Acoli] contend[s] that the Board did not

consider that [Acoli] has taken . . . "full

responsibility" for [the trooper's] death . . . . The

Board . . . conducted [Acoli's] hearing to determine

his suitability for parole. The Board had the ability to

ask [Acoli] questions and to review his case to

evaluate whether he . . . gained the problem resolution

necessary to ensure that there is not a substantial

likelihood that he would commit a crime if released on

parole. The Board determined, based on its interview

[of Acoli], and its review of the case file, that [Acoli]

does not demonstrate the insight necessary to be a

viable candidate for parole release at the present time.

Although he may believe that he has [] made progress

[] sufficient to ready him for parole release, the Board

found otherwise.

[(Emphasis added).]

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Referring to its December 22, 2016 written decision establishing the

180-month FET, the Board stated that Acoli "demonstrated a lack of

satisfactory progress in reducing future criminal behavior[,] and that therefore,

pursuant to N.J.A.C. 10A:71-3.21(d), a [FET] within the statutorily provided

guidelines [was] inappropriate[.]" Moreover, in rejecting Acoli's argument

that the 180-month FET was excessive, the Board stated:

[Acoli] continues to demonstrate no insight towards

understanding the lifestyle and behavior choices that

he was making leading up to the murder. While he

states that he no longer advocates violence, he yet

cannot provide tangible explanations as to how he has

changed his behavior choices or patterns. [Acoli] has

made only negligible progress into understanding why

he chose to be a part of a violent militant organization.

He does not appear to recognize what changes he

needs to make to ensure a crime[-]free lifestyle.

Further, he seems conflicted in his thinking and is

unable to fully reconcile his behaviors and actions

involved in the time leading up to the murder, and the

murder itself. He repeatedly states that he takes

ownership and responsibility for the murder of the

trooper, but there are significant contradictions to

those statements in his further testimony before the

Board. He presents as being emotionless and lacking

in empathy and does not appear to realize the severity

of his violent actions. The Board finds that more

work needs to be done on [Acoli's] part, in order for

him to undergo a meaningful introspection into the

internal and external factors that impelled his life

choices.

[(Emphasis added).]

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Moreover, in its six-page December 22, 2016 notice of decision, the Board

stated:

[Y]ou have never before speculated as to who you

believed shot and killed the trooper, instead

maintaining that you were in an unconscious state

when the act occurred. At the [remand] hearing, you

chose to deviate from your past statements and

speculated that the trooper was killed by friendly fire.

Although the ballistic evidence reveals that could not

be the case, as the trooper was shot with his own

weapon, it is disturbing that you would make such

conjecture, especially considering your assertions that

you take responsibility for the crime.

[(Emphasis added).]

Consideration of Acoli's suitability for parole release—albeit on a different

record—returns to us on this appeal in the aftermath of the Board's final

decision.

II.

On this appeal, Acoli raises the following points:

[POINT I]

THE RECORD DOES NOT SHOW BY A

PREPONDERANCE OF THE CREDIBLE

EVIDENCE THAT [ACOLI] HAS A

"SUBSTANTIAL LIKELIHOOD" OF COMMITTING

FUTURE CRIME IF RELEASED.

A. IN NEW JERSEY[,] PAROLE IS PRESUMED

UPON REACHING THE ELIGIBILITY DATE AND

THE BURDEN IS ON THE STATE TO PROVE

[ACOLI] IS A RECIDIVIST.

A-5645-16T2

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B. THE RECORD DOES NOT SUPPORT A

SHOWING THAT [ACOLI] IS "SUBSTANTIALLY

LIKELY" TO BE A RECIDIVIST.

1. THE BOARD IMPROPERLY RELIED

UPON REMOTE OFFENSES AS A

BASIS FOR DENIAL OF PAROLE.

2. THE BOARD'S FOCUS ON

[ACOLI'S] ALLEGED

UNWILLINGNESS TO ADMIT THE

PREMEDITATED NATURE OF THE

OFFENSE DOES NOT ESTABLISH A

SUBSTANTIAL LIKELIHOOD OF

RECIDIVISM.

3. THE RECORD DOES NOT SUPPORT

THE BOARD'S CONCLUSION THAT

[ACOLI] HAS NOT OPENLY

ACKNOWLEDGED AND ADMITTED

[TO] HIS PAST ASSOCIATIONS WITH

A VIOLENT POLITICAL MOVEMENT.

4. THE RECORD DOES NOT SUPPORT

THE STATE'S NEW PSYCHOLOGIST'S

CONCLUSION THAT [ACOLI] HAS

FAILED TO MAKE SUFFICIENT

GAINS FROM COUNSELING AND

THERAPY.

5. THE BOARD'S BASIS FOR

DENYING PAROLE IS SPECULATIVE

AND DOES NOT RISE TO THE LEVEL

OF PROOF THAT ACOLI IS

"SUBSTANTIALLY[] LIKELY["] TO

COMMIT FUTURE CRIME.

A-5645-16T2

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[POINT II]

[ACOLI'S] RECORD WHILE INCARCERATED

FOR NEARLY [FORTY] YEARS MITIGATES

AGAINST THE FINDING THAT HE IS

"SUBSTANTIALLY LIKELY" TO COMMIT

FURTHER CRIMES.

Our narrow standard of review is critical to adjudicating Acoli's

arguments on appeal. Of course, parole determinations are subject to j udicial

review. When reviewing the Parole Board's denial of parole, we concentrate

on three inquiries:

(1) whether the agency's action violates express or

implied legislative policies, i.e., did the agency follow

the law; (2) whether the record contains substantial

evidence to support the findings on which the agency

based its action; and (3) whether in applying the

legislative policies to the facts, the agency clearly

erred in reaching a conclusion that could not

reasonably have been made on a showing of the

relevant factors.

[Trantino v. N.J. State Parole Bd. (Trantino IV), 154

N.J. 19, 24 (1998).]

We will reverse an administrative agency's decision "only if it is arbitrary,

capricious, or unreasonable or [if] it is not supported by substantial credible

evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J.

571, 579-80 (1980) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562

(1963)).

A-5645-16T2

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We undertake that analysis understanding the uniqueness of the Parole

Board. See Acoli II, 224 N.J. at 222-23 (explaining the specialized nature of

the Parole Board). The Legislature purposefully established the Parole Board

that collectively embodies unique and particular characteristics. Under

N.J.S.A. 30:4-123.47(a), the Board consists of a chairperson, fourteen

associate members, and three alternate board members. Acoli II, 224 N.J. at

222. The Governor appoints these individuals with the advice and consent of

the Senate, and selects them based on their qualifications. Ibid. (citing

N.J.S.A. 30:4-123.47(a)). Indeed, the statute requires that they be "qualified

persons with training or experience in law, sociology, criminal justice, juvenile

justice or related branches of the social sciences." N.J.S.A. 30:4-123.47(a).

We expressly draw attention to the qualification-based appointment of

the Board members especially because here, the Board utilized its expertise

and conducted a full in-person hearing, listened to Acoli's responses during the

lengthy hearing, and observed Acoli interact with the Board. The Board

members' individual, diverse, and combined expertise was important, as they

undertook their weighty responsibility of deciding whether Acoli satisfied the

criteria for parole release. The Parole Board is the only agency entrusted with

the "specialized knowledge to administer [the] regulatory scheme." Acoli II,

224 N.J. at 222.

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Based on the diverse background of its members, the Parole Board

makes "highly predictive and individualized discretionary appraisals." Ibid.

(quoting Beckworth v. N.J. State Parole Bd., 62 N.J. 348, 359 (1973)). The

appraisals are inherently imprecise because they are "discretionary

assessment[s] of a multiplicity of imponderables, entailing primarily what a

man is and what he may become rather than simply what he has done." Ibid.

(alteration in original) (quoting Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 10 (1979)). "Stripped to its essentials, a parole board's

decision concerns a prediction as to an inmate's future behavior, a

prognostication necessarily fraught with subjectivity." Ibid. (quoting Trantino

v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 201 (2001)) (Baime,

J.A.D., dissenting).

Given the subjective nature of the Board's prediction of an inmate's

future behavior, and the highly specialized composition of the Board itself, we

are not permitted to substitute our judgment for that of the Board's. Indeed, in

the Court's remand, it stated:

By virtue of our remand, we ensure that subsequent

judicial review, if critical of the substance of that

ultimate determination by the Parole Board under the

applicable standard of review, does not impermissibly

result in a judicial substitution of a decision reposed

by the Legislature with the Parole Board. The

Appellate Division here declined to remand to the

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Parole Board for a full hearing, as was requested on

reconsideration by the Parole Board. The panel,

essentially, saw no point to that step, having itself

evaluated Acoli's bases for asserting that he is ready

for release and determining that there has been no

convincing reason presented to date to require his

further incarceration. That remedy basically

substituted the appellate panel's judgment for that of

the agency charged with the expertise to make such

highly predictive, individualistic determinations—the

full Parole Board.

[Acoli II, 224 N.J. at 230-31.]

We note that Acoli is serving a sentence imposed under Title 2A, the

predecessor to the New Jersey Code of Criminal Justice, now codified under

Title 2C. The Parole Act of 1979, N.J.S.A. 30:4-123.45 to -123.79, governs

Acoli's parole fitness, and provides for parole of an inmate upon eligibility

unless a preponderance of the evidence demonstrates "there is a substantial

likelihood that the inmate will commit a crime under the laws of this State if

released on parole at such time." N.J.S.A. 30:4-123.53 (amended 1997). The

Board utilized this correct standard during the remand proceedings.

Here, the Board also complied with all other applicable law, including

N.J.A.C. 10A:71-3.11. The regulation, entitled "Factors considered at parole

hearings; adult inmates," states:

(a) Parole decisions shall be based on the aggregate of

all pertinent factors, including material supplied by

the inmate and reports and material[,] which may be

A-5645-16T2

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submitted by any persons or agencies which have

knowledge of the inmate.

(b) The hearing officer, Board panel or Board shall

consider the following factors and, in addition, may

consider any other factors deemed relevant:

1. Commission of an offense while

incarcerated.

2. Commission of serious disciplinary

infractions.

3. Nature and pattern of previous

convictions.

4. Adjustment to previous probation,

parole and incarceration.

5. Facts and circumstances of the offense.

6. Aggravating and mitigating factors

surrounding the offense.

7. Pattern of less serious disciplinary

infractions.

8. Participation in institutional programs

which could have led to the improvement

of problems diagnosed at admission or

during incarceration. This includes, but is

not limited to, participation in substance

abuse programs, academic or vocational

education programs, work assignments

that provide on-the-job training and

individual or group counseling.

9. Statements by institutional staff, with

supporting documentation, that the inmate

is likely to commit a crime if released;

A-5645-16T2

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that the inmate has failed to cooperate in

his or her own rehabilitation; or that there

is a reasonable expectation that the inmate

will violate conditions of parole.

10. Documented pattern or relationships

with institutional staff or inmates.

11. Documented changes in attitude

toward self or others.

12. Documentation reflecting personal

goals, personal strengths or motivation for

law-abiding behavior.

13. Mental and emotional health.

14. Parole plans and the investigation

thereof.

15. Status of family or marital

relationships at the time of eligibility.

16. Availability of community resources

or support services for inmates who have

a demonstrated need for same.

17. Statements by the inmate reflecting on

the likelihood that he or she will commit

another crime; the failure to cooperate in

his or her own rehabilitation; or the

reasonable expectation that he or she will

violate conditions of parole.

18. History of employment, education and

military service.

19. Family and marital history.

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20. Statement by the court reflecting the

reasons for the sentence imposed.

21. Statements or evidence presented by

the appropriate prosecutor's office, the

Office of the Attorney General, or any

other criminal justice agency.

22. Statement or testimony of any victim

or the nearest relative(s) of a

murder/manslaughter victim.

23. The results of the objective risk

assessment instrument.

[N.J.S.A. 10A:71-3.11 (emphasis added).]

"Common sense dictates that [the Board's] prediction as to future conduct . . .

be grounded on due consideration of the aggregate of all of the factors which

may have any pertinence." Beckworth, 62 N.J. at 360.

III.

In denying parole, the Board heavily relied on Acoli's insufficient

problem resolution. After completing its in-person interview of Acoli, the

Board concluded that he lacked insight into his criminal behavior, denied key

aspects of his crimes, and minimized his criminal conduct and anti-social

behavior. The Board found Acoli did not answer questions at the hearing

spontaneously, paused "before answering each question," and was "often

hesitant to provid[e] details to even the simplest of questions." The Board

A-5645-16T2

21

determined that his responses were "superficial in nature and appeared

rehearsed in their structure."

A.

As to his continued denial of key aspects of his crimes, and his

minimizing of his criminal conduct and anti-social behavior, we emphasize the

difference between Acoli's present assertions and his previous statements in

past hearings. Previously we addressed whether Acoli's "forty-year-old

recollection of the events [was] likely to change." We stated:

The Board appeared to rely most heavily on its

evaluation that Acoli lacked insight into his criminal

behavior as he minimized his conduct and denied "key

aspects of his commitment offenses." Specifically, the

Board points out that he did not accept responsibility

for his crimes because Acoli's version of the crimes

was not consistent with the established facts[.]

....

Acoli has alleged that he did not see who fired first as

he was on the other side of the car; during the struggle

with Foerster he was grazed by a bullet that rendered

him temporarily unconscious; and when he regained

consciousness Foerster was dead, and Harper had

retreated. Nevertheless, he has accepted full

responsibility for the murder of Foerster and admitted

he should not have struggled with the trooper and

prevented him from aiding Harper.

....

A-5645-16T2

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The Board's reasoning that Acoli is likely to commit

another crime if he does not recall the State's version

of his crime has the draconian effect of condemning

him to prison for the rest of his life.

[Acoli I, slip op. at 8-9 (emphasis added).]

In our unpublished opinion, we acknowledged the difficulty of

considering parole of an inmate who admitted his role in murders, but also

claimed he was unable to remember details of the crimes:

[I]n Trantino IV, . . . the Board "based its successive

denials of parole in large measure on the fact that

Trantino was avoiding responsibility for [his] crimes."

154 N.J. at 33-34. The Board refused to grant parole

until Trantino fully admitted his role in his murders,

which Trantino did not deny responsibility for, but

claimed that he could not remember the details of

because of the drugs and alcohol he had consumed

that night. Id. at 34-35. Since Trantino's absence of

memory was consistent, the Supreme Court found that

he could not and would not "ever be able to remember

actually pulling the trigger." Id. at 35, 38. As such,

the Court precluded the Board from relying on his lack

of recollection in its parole denial. Trantino VI, . . .

166 N.J. at 193-94.

[Acoli I, slip op. at 9 (alteration in original) (emphasis

added).]

The Board members questioned Acoli about Trantino at the full Board

in-person hearing. Acoli stated, "[Trantino is] a very well-known case . . . I

know a little about it now . . . because I read it and [it is] a famous case." At

the hearing Acoli asserted that he "blacked out" from a grazed bullet, which

A-5645-16T2

23

purportedly rendered him temporarily unconscious and therefore unable to

know who killed the trooper. A Board member stated that Acoli's

assertion⸻that he could not remember since he "blacked out"⸺was

remarkably similar to Trantino's inability to remember the details of the

underlying crime.

The Board had difficulty believing Acoli "blacked out" and was rendered

unconscious because of a grazed bullet. The Board also found it "disturbing"

that Acoli "deviate[d] from [his] past statements and speculated the trooper

was killed by friendly fire." The Board noted Acoli previously asserted he

"blacked out" before the trooper was shot, which is inconsistent with his

statement at the hearing that the trooper was probably killed while Acoli

struggled with him. In other words, Acoli—unlike in Trantino—did not have a

consistent "absence of memory."

Q. [Trooper Foerster] began to pat you down?

A. Right.

Q. Okay. And what . . . did he find?

A. He found the [ammunition] clip in my belt pocket,

and the [loaded] 380 [semiautomatic handgun] in my

right pocket.

....

Q. What happen[ed] next?

A-5645-16T2

24

A. [H]e seemed to get mad, and I think he swung and

hit me with [a] roundhouse right upside the head on

my . . . temple.

....

Q. So he hit you with the gun[?]

A. Right . . . with his gun.

....

Q. [Y]ou heard shots fired, correct?

A. Right, um-hum.

....

Q. [W]here did the first gunshots come from, do you

know?

A. No, I don't know.

....

Q. [Y]ou knew it was not from Trooper Foerster[?]

A. Right, um-hum.

Q. Okay. So then what did you do in response to . . .

the shots being fired?

A. I immediately grabbed [Trooper Foerster's] gun

that he was whipping me with by the barrel, and

pushed it to the side.[4] And just as I pushed [it] to the

side, [Trooper Foerster] fired . . . in[to] my [right]

hand.

4

Trooper Foerster died from two bullets that came from his own gun.

A-5645-16T2

25

....

Q. And where was your weapon at the time?

A. [Trooper Foerster] had it in his left hand.

....

Q. [Y]ou thought you were protecting yourself?

A. [Y]eah, in other words I figured . . . I didn't want

him to shoot me.

Q. How many times did he hit you with his weapon?

A. [T]wo or three[.]

....

Q. [H]e gave you a roundhouse, you said before.

A. Right, uh-huh.

Q. Are you saying he followed that up with two or

three more blows?

A. Uh, yeah[.]

....

Q. Did you hear [the gunshots] stop[?]

A. Yeah. . . . [Trooper Harper] was aiming a gun at

me, and then a – puff of smoke, just seemed as [if] it

came out – out of the barrel, and I blacked out.

At the hearing, Acoli stated that he regained consciousness after Trooper

Foerster was shot, then he returned to his car and helped his two passengers

A-5645-16T2

26

into it, and then drove three-to-five miles away. The Board questioned Acoli

about these details:

Q. [W]hat did you do next?

A. [I could not] see because the blood was running all

in my eyes[.]

Q. Because blood was running into your eyes –

A. Right.

Q. – from the wound on your –

A. Right, on my –

Q. – person?

A. Yeah, on my head.

Q. Where were you wounded?

A. Uh, where the bullet grazed my head[.]

....

Q. But I'm looking at the pictures here when you were

taken into custody, and there are no marks on your

face . . . . [W]hy don't [you] think you had marks on

your face if somebody pistol-whipped you?

A. Because, uh – okay, the first time he hit me, he hit

me with the flat of the gun . . . up the side of [my]

temple. And then – and the next ones, I kind of – kind

of blocked it . . . . And by then, uh, a little shortly

after that, the gunfire broke out on the other side of

the car[.]

A-5645-16T2

27

Q. But you also said [Trooper Foerster] shot you [in

your hand].

A. Yeah, he did[.]

....

Q. [Trooper] Foerster's gun was a six-shot Colt

revolver . . . and only had two spent rounds in the

cartridge, and both of those bullets were . . . taken out

[of] his head . . . . There was no third shot, sir.

A. Then, uh – I don't know, you know.

....

Q. [Y]ou're claiming that . . . Trooper Harper shot[] at

you?

A. Yes[.]

Q. Okay.

A. [Trooper] Harper hit me in the head with the

gunshot.

....

Q. [But] [t]here's no reference to [your head wound]

in the trial record. Why is that?

....

A. [A]t the time I went to trial[,] . . . [my lawyer] was

useless.

....

Q. "[Trooper Foerster] had head bore abrasions on the

left cheek, lacerations at the top of the forehead, the

A-5645-16T2

28

mid forehead, and the left side of the head . . . . He

had bruises and abrasions on both hands." Upon your

arrest, "[t]he only injury found was a cut on the

webbing between [your] right thumb and forefinger.

Otherwise, [you were] unmarked and uninjured."

A. All I know is [Trooper Foerster] assailed me.

....

Q. Well, then how did he have so many bruises and

bumps, and you only [had] one?

A. I had more, they weren't – they didn't record those.

Q. You think they're lying [about your injuries]?

....

A. They're lying about it.

At a later point during the full hearing, Acoli explained to the Board for the

first time that Trooper Foerster was killed during Acoli's struggle with him—

which necessarily means that he was not unconscious when the trooper was

shot.

Q. Who do you think killed Trooper Foerster?

....

A. I think he was probably shot by Trooper Harper.

....

Q. You really think that?

A. Yeah, um-hum.

A-5645-16T2

29

Q. While you were struggling with him?

A. Um-hum.

[(Emphasis added).]

Acoli provided inconsistent responses. He alleged that "during the

struggle with Foerster he was grazed by a bullet that rendered him temporarily

unconscious[,] [and] when he regained consciousness[,] Foerster was dead[.]"

Acoli I, slip op. at 8. But at the full hearing, he said that Trooper Harper shot

Trooper Foerster while Acoli was struggling with Trooper Foerster.

The Board therefore determined that Acoli appeared to "emotionally

block[] any association to the murder by deflecting any acceptance of personal

liability or responsibility." At the hearing, instead of maintaining that he was

unconscious when the killing occurred, and therefore he did not know who

killed the trooper, Acoli explained that the trooper was shot during the

struggle. As to Acoli's explanation for how Trooper Foerster was killed, the

Board stated:

Although the ballistic evidence reveals that could not

be the case, as the trooper was shot with his own

weapon, it is disturbing that you would make such

conjecture, especially considering your assertions that

you take responsibility for the crime. Based upon the

fact that you present as not having conducted a

complete critical analysis of yourself and the internal

and external factors that control your behaviors, the

Board finds that more work in this area must be

completed.

A-5645-16T2

30

B.

The Board was troubled by Acoli's responses and mannerisms, his

refusal to accept responsibility for Trooper Foerster's murder, and his inability

to elaborate on his behavioral growth. The Board found that Acoli's

"presentation" at the hearing was insincere, as his "answers were not

spontaneous and [he] paused before answering each question[.]" As to his

rehearsed responses, the Board questioned him about his efforts to use his

counseling to become more convincing. The following colloquy occurred:

Q. [Y]ou expressed . . . that you wanted to work on

counseling, and it says [in the counseling report] that

"[y]ou came up with the idea that you're not

convincing enough during your parole hearings, and

wanted to know, through counseling, how to be more

convincing in the parole hearings."

A. Um –

....

Q. [W]hat were you trying to be convincing about?

A. I don't know[.]

After assessing his manner during the hearing, the Board found that Acoli's

"presentation" was "shallow and emotionless."

To support its conclusion that Acoli lacked insight into his criminal

behavior, the Board pointed out that Acoli failed to take responsibility for

A-5645-16T2

31

shooting Trooper Foerster⸻especially since he apparently was not

unconscious during the shooting of Foerster. Rather, Acoli took responsibility

for struggling with the trooper, which he then maintained led to Trooper

Harper killing Trooper Foerster. Nevertheless, the Board found that the

ballistics evidence showed otherwise. Importantly, the Board questioned how

Acoli could say⸻if he "blacked out" before the killing⸻that he believed

Trooper Harper accidentally shot Trooper Foerster.

Q. [Y]ou're not responsible for the death, are you?

A. Responsible for the death? Yeah, I'm responsible

for the death. Part of it because, uh, uh, I guess I – if I

hadn't struggled with him, he could have likely went

and helped his partner . . . and he might have lived.

But I don't really see how he could've went and helped

him until he took care of me, one way or the other.

And I think the quickest way to take care of me

would've been to have shot me, and get me out of the

way, and go help his partner. But by me struggling

with him, it did, uh, possibly keep him from living.

And I'm probably, you know, the cause of his death.

....

Q. I don't understand how a man can do [forty-three]

years [in prison] and still act like he didn't [shoot the

trooper].

A. I took responsibility for it.

Q. How can you take responsibility, sir, for

something you say you didn't do?

A-5645-16T2

32

A. I – uh, I explained what I said – that I did, that I

struggled with him, and prevent[ed] him from going to

the aid of his –

Q. Sir, you didn't get life for a struggle. You got life

for the murder, for putting the bullets in his head,

that's what you got life for.

A. I didn't put the bullets in his head.

Q. But that's what you got life for.

A. Um, that's what I took responsibility for then.

These concerns, in part, led the Board to conclude Acoli lacked sufficient

problem resolution, "specifically, that he lacked insight into his criminal

behavior."

On remand, the Board obtained a new psychological evaluation pursuant

to N.J.A.C. 10A:71-3.7, which states "[a]t any time while an inmate is

committed to the custody of the Commissioner, the appropriate Board panel or

the Board may require, as often as it deems necessary, the inmate to undergo

an in-depth pre-parole psychological evaluation conducted by a psychologist."

The new report—a confidential report that was not part of the previous

administrative record—is unquestionably less favorable to Acoli than the 2010

evaluation. This new report, by a different psychologist, which we have fully

reviewed, played an indispensable part in the Board's final decision.

A-5645-16T2

33

Although Acoli contends that the Board did not fully consider mitigating

evidence, the record reflects otherwise. The Board reviewed his program

participation, prison history, pre-parole reports, and respective notices of

decisions and case assessments. The Board was aware of Acoli's rehabilitation

efforts when it conducted the full Board in-person hearing. It is undisputed

that Acoli participated in programs during incarceration. As the Board pointed

out in its final decision:

[T]he Board reviewed [Acoli's] entire record in

rendering its decision. His age and personal and

medical histories; his criminal history; his record of

rehabilitative program participation (including each of

those programs referenced in your appeal); his current

custody status and institutional work history; and his

infraction-free status (since his last Board panel

hearing); are all matters of record, were noted in the

pre-parole report, the parole case file, and/or the Case

Assessment at the time of his Initial Parole Hearing,

and were considered by the Board. Based on the

information on record, the Board appropriately noted

as mitigation on the Notice of Decision: minimal

offense record; all opportunities on community

supervision completed without violations; infraction

free since last panel; participation in programs specific

to behavior; and participation in institutional

programs.

After fully questioning Acoli and considering the entire record—especially the

new psychological evaluation—the Board exercised its expertise and

concluded that the aggravating factors, specifically his insufficient problem

resolution, outweighed the mitigating factors.

A-5645-16T2

34

After we noted that "Acoli acknowledged that at the time of the crimes

he was involved in revolutionary groups, was armed with a weapon, and was

traveling with a wanted fugitive[,]" Acoli I, slip op. at 8, we stated—based on

the administrative paper record⸻that "Acoli consistently espoused the same

sequence of events since his arrest[.]" Ibid. But that is no longer the case.

Instead of consistently saying that "a bullet . . . rendered [Acoli] temporarily

unconscious[,] . . . and when he regained consciousness [Trooper] Foerster was

dead," ibid., Acoli stated that Trooper Harper accidentally shot Trooper

Foerster while Acoli struggled with Trooper Foerster.5

Finally, the Board concluded that Acoli could not articulate how he

changed his anti-social patterns. Considering Acoli's previous participation in

a "radical organization," the Board thought it was important to assess "the

manner in which [Acoli would] conduct [himself] and address and process

confrontational situations or situations involving societal conflict." The Board

stressed that "upon release, [Acoli] may be faced with similarly charged

5

In our prior opinion, we stated that "[t]here were no eyewitnesses to

[Trooper] Foerster's shooting[,] and [that] the Middlesex County Prosecutor[,]

in a letter to the Board opposing Acoli's parole before the hearing, pointed out

that [Acoli's passenger] might have fired [Trooper] Foerster's gun." Acoli I,

slip op. at 8 n.9. But at the full hearing, the Board questioned Acoli about

whether one of his passenger's shot [Trooper] Foerster, and Acoli remained

steadfast that, in a "[f]riendly fire shot," Trooper Harper "probably" shot

Trooper Foerster while Acoli struggled with Trooper Foerster because Trooper

Harper "was doing . . . all the shooting."

A-5645-16T2

35

situations regarding social injustice and community activism." Therefore, the

Board felt it was necessary to understand how Acoli's views on violence and

activism changed throughout his confinement. The Board found that he

continued to believe his actions were justified, he had no understanding of why

violence was necessary to affect social change, and that he failed to show how

his criminal thinking pattern changed. The Board questioned him on these

topics. For example, the Board addressed a Criminal Thinking Program Acoli

participated in.

Q. [Do you remember] taking the Criminal Thinking

Group [class]?

A. . . . I do remember taking Criminal Thinking.

....

A. I can't remember . . . many details [of] it.

Q. Details about what? I'm just asking about the

Criminal Thinking Program.

A. That's what I mean, that – uh, all that I know is

that I knew – I know that – that I took it.

....

Q. [W]hat [did] you learn[] in it?

A. . . . I'm not absolutely sure, but I think it probably

had to do with, um, criminal mentality[.]

Q. . . . I want to know how it helped you, and what it

changed in your way of thinking, and making

A-5645-16T2

36

decisions, and how you look at the issues that you've

been involved in[.]

A. Okay. All I . . . can really know is I don't [have]

intentions of being involved in any criminal activity.

Q. . . . I'm more interested in what you've learned

[from the program] [b]ecause you say that you've

completed the program [but the record] says here that

you didn't[.]

....

Q. [Y]ou can't tell me what you've learned, but can

you explain to me how your criminal thinking has

changed?

A. Uh –

....

Q. Explain to us, please, what have you learned from

that class?

A. Um, offhand, I'd have to say that you don't break

the law. It has something to do with not breaking the

law.

Acoli continued that one should "stay away from the violence" and avoid

"getting something for nothing."

IV.

Our dissenting colleague concludes that our opinion "inflicts a blow to

the integrity of our justice system[.]" Post at ___ (slip op. at 1). The premise

of his conclusion is that the remand proceedings amounted to "nothing more

A-5645-16T2

37

than a 'show hearing,' [which] only resulte[d] in the denial of parole again 'for

no rational or just purpose.'" Ibid. Our colleague asserts that we "abandon[ed]

our guiding principles" and have "contravene[d] the public policy behind the

Parole Act[.]" Id. at ___ (slip op. at 1-2). To the contrary, we have

systematically adhered to decades of precedent, applied our long-standing

standard of review, and resisted the temptation to substitute our judgment for

that of the "agency charged with the expertise to make such highly predictive,

individualistic determinations—the full Parole Board." Acoli II, 224 N.J. 230-

31. We therefore, respectfully, strongly disagree with his characterization of

our decision—or for that matter—his implication that the Board simply went

through the motions on remand.

As the new record reflects, our colleague erroneously suggests the Board

denied parole solely because Acoli "refus[ed] to accept the facts as found by

the jury."6 Post at ___ (slip op. at 13). He is concerned that "other prisoners

6

Our colleague relies on Kosmin v. N.J. State Parole Bd., 363 N.J. Super. 28,

42 (App. Div. 2003) for the proposition that "[t]he Parole Board cannot insist

that [an inmate]'s insight into [his] criminal behavior is impaired by reason of

the fact that [he] will not admit that [he] was the actual shooter." Post at ___

(slip op. at 12). The Board here did not find Acoli's "criminal behavior was

impaired" as a result of his unwillingness to admit he shot the trooper.

Instead, the Board relied on the new psychological report—as well as the

entire new record—and concluded that Acoli suffered from insufficient

problem resolution (despite his rehabilitation efforts). And importantly,

Kosmin is factually distinguishable. In Kosmin, the defendant pled guilty, and

(continued)

A-5645-16T2

38

who . . . look to the Parole Board's actions [will] see no reason to hope that

they will be paroled when eligible[.]" Id. at ___ (slip op. at 15-16). Our

colleague has determined that because the Board purportedly ignored Acoli's

"development and rehabilitation [efforts] since he committed his crime," and

has instead denied parole based "upon the crime itself," there may be no

incentive for "model prisoners[] like Acoli" to "maintain order." Id. at ___

(slip op. at 6). Our colleague believes this may lead to a "possibility" of

creating a risk of resurgence in prison unrest. Id. at ___ (slip op. at 6-7). This

is not a situation where the Board found Acoli was a "model prisoner[],"

ignored his rehabilitation efforts, and then denied him parole "for no rational

or just purpose." Id. at ___ (slip op. at 1, 6).

We disagree with our colleague's assertion that "the record . . . has

remained virtually unchanged since [this court] visited this matter in 2014."

Id. at ___ (slip op. at 1). One obvious difference is the new psychologist

report, which added different critical insight for the Board's consideration.

(continued)

the Board considered a psychological report that explained the defendant

displayed "evidence of anxiety, sadness, remorse, guilt and pain"; that her

"[s]peech was fluid, articulate and relevant"; and that "[s]he was primarily

fully engaged in direct eye contact with the examiner." Kosmin, 363 N.J.

Super. at 35.

A-5645-16T2

39

Indeed, our colleague concedes that the new report—obtained properly by the

Board under N.J.A.C. 10A:71-3.7—"formulated a much less favorable opinion

about Acoli than the [psychological] report the Board considered in 2011." Id.

at ___ (slip op. at 10). The dissent points out that the new report does not use

the words "friendly fire." Id. at ___ (slip op. at 11 n.6). Rather than focusing

on what the report did not say, the Board concentrated on what the

psychologist actually said.

Let us be clear. Our colleague states that the new psychologist did not

mention in her report that "Acoli said anything about 'friendly fire.'" Ibid.

Instead, she reported he could "not even fathom who could have possibly

pulled the trigger." This is diametrically opposed to his unequivocal statement

to the full Board⸻given just a couple of months after the psychological

interview—that Trooper Harper "probably shot" Trooper Foerster while (not

after) Acoli struggled with Trooper Foerster. Acoli did not say to the Board

that Trooper Harper shot Foerster while Acoli was unconscious; he said that

Harper "probably" shot Foerster during the struggle because Harper "was

doing . . . all the shooting." Questioning him about the shooting is not

surprising, especially because Acoli himself placed his credibility in play when

he said he blacked out.

A-5645-16T2

40

There was nothing perfunctory about the new report. To the contrary,

the psychologist rendered her twelve-page, single-spaced report after

interviewing Acoli on two days, reviewing approximately twenty-one

documents (including the previous psychology report referred to by our

colleague), and performing a psychometric evaluation. The Board's reliance

on her clinical opinions and recommendations undermines our colleague's

determination that the Board somehow denied parole "for no rational or just

purpose." Id. at ___ (slip op. at 1).

Another obvious important difference is that during the last hearing

before it, the Board conducted a lengthy in-person hearing at which all the

members questioned Acoli about a variety of subjects. We must not lose sight

of what that means. The Board based its findings—that his responses were

insincere, rehearsed, shallow, and emotionless—on each Board member's first-

hand opportunity at the hearing to observe and listen to his testimony, things

that no reviewing court (without being there) can perceive by simply reading a

transcript. The Board assessed Acoli's demeanor and mannerisms and

concluded he gave contradictory and implausible responses, especially about

blacking out.

This record—not the earlier one—supports the difficulty the Board had

believing Acoli blacked out. That is so because the Board learned for the first

A-5645-16T2

41

time that Acoli remembered almost everything else. For example, he

remembered being pulled over; exiting his car with a loaded semiautomatic

weapon; and walking towards Trooper Foerster. He recalled Trooper Foerster

struck him with a roundhouse "upside my head," and that the Trooper

"whipp[ed]" him two or three times with the "barrel" of Trooper Foerster's gun

(although the photographs showed no injuries to his head or face) . He

identified the hand in which Trooper Foerster was holding a gun. He

explained he heard gunshots, saw gun smoke and Trooper Harper's face, and

that Trooper Harper fired at him, grazing his head with a bullet, which Acoli

said rendered him unconscious. He testified that Trooper Harper "probably

shot" Foerster in friendly fire, and specifically denied that his two passengers

could have done so. Acoli testified that he regained consciousness after

Trooper Foerster died, returned to his car, helped his passengers into his car,

and drove three-to-five miles away from the scene of the murder, where the

police captured him hiding in the woods. His entire testimony supported the

Board's finding that he "emotionally blocked any association of the murder,"

which directly supported its conclusion that he minimized his criminal conduct

and anti-social behavior.

Finally, the Board focused on Acoli's rehabilitation efforts and

concentrated on his continued insufficient problem resolution. Our colleague

A-5645-16T2

42

points out that Acoli participated in "at least 100 different programs for self -

improvement as well as vocational training[.]" Id. at ___ (slip op. at 11 n.5).

And he is right. But when the Board asked him open-ended questions,

specifically what he had learned from his Criminal Thinking Group class,

Acoli said "I'm not absolutely sure . . . [i]t has something to do with not

breaking the law." Thus, contrary to our colleague's belief that the Board

denied parole only because Acoli did not admit to the shooting, the Board

relied on all of his testimony—and its review of the entire case file—and

concluded Acoli failed to demonstrate the necessary insight into his

incomplete problem resolution progress, and denied parole "at the present

time."

Emphasizing that we are not to substitute our judgment for that of the

full Parole Board, we will not do so here. Acoli II, 224 N.J. at 230-31. It is

clear from the record before us that the Board did not act arbitrarily or

capriciously in denying Acoli's parole application. Indeed, there is ample

support in the record for the Board's determination that there is a substantial

A-5645-16T2

43

likelihood that Acoli will commit another crime under the laws of this State if

the Board grants him parole.7 See N.J.S.A. 30:4-123.53(a).

Affirmed.

7

We note the Board's December 22, 2016 FET decision states that Acoli's

projected parole eligibility date was in March 2019; and he is entitled to

annual parole reviews. The Board stated:

It is strongly encouraged that you participate in these

reviews. If the Board panel determines at your annual

review that you have made progress towards your

rehabilitation, the Board panel may authorize a

reduction in the [FET]. Also, the Board panel has the

option of referring your case for a parole release

hearing.

A-5645-16T2

44

ROTHSTADT, J.A.D. dissenting.

As Justice Albin observed in his dissent from the Court's opinion in

Acoli v. New Jersey State Parole Board (Acoli II), 224 N.J. 213 (2016), "this

case is about more than one individual. It is about the integrity of our justice

system." Id. at 241 (Albin, J., dissenting). The majority's opinion today,

affirming the Parole Board's latest denial of parole to Acoli, inflicts a blow to

the integrity of our justice system by fulfilling Justice Albin's prediction, in the

same dissent, that the Supreme Court's remand to the Parole Board in Acoli II

would amount to nothing more than a "show hearing," and only result in the

denial of parole again "for no rational or just purpose." Id. at 240.

Although the majority affirms the Parole Board's decision under its view

that new information justified the Parole Board's actions, its perception is

belied by the record that has remained virtually unchanged since we last

visited this matter in 2014. See Acoli v. N.J. State Parole Bd. (Acoli I), No.

A-3575-10 (App. Div. Sept. 29, 2014). Moreover, despite the fact that in

1974, Acoli's sentence could not legally have been life without parole, the

impact of the majority's opinion affirming the Parole Board's actions, which

were based upon the "strong winds of public opinion," Acoli II, 224 N.J. at

241 (Albin, J., dissenting), imposes that very sentence on Acoli. In doing so,

the majority abandons our guiding principles, that "the most despised inmate is

entitled to the protection and enforcement of the law," id. at 234, "and that the

law must apply 'equally to all persons, the bad as well as the good.'" Id. at 233

(quoting Trantino v. N.J. State Parole Bd. (Trantino VI), 166 N.J. 113, 197-98

(2001)). Also, by affirming the Parole Board's action, the majority

contravenes the public policy behind the Parole Act of 1979, N.J.S.A. 30:4-

123.45 to -123.88 (Parole Act), which supports the maintenance of a fair

system of parole, by jeopardizing the public's safety. For these reasons, I

respectfully dissent.

I.

At the outset, as we acknowledged in Acoli I, I remain "appalled by

Acoli's senseless crimes, which left a member of the State Police, [State

Trooper Werner Foerster,] dead and another, [State Trooper James Harper,]

injured, as well as one of Acoli's associates dead and the other injured."1 Acoli

I, slip op. at 27. Surely, it was "the most heinous crime . . . which, if

committed today, would result in a life sentence without parole eligibility. "

Acoli II, 224 N.J. at 234 (Albin, J., dissenting). Moreover, both troopers'

1

As we observed in our earlier opinion, "Acoli began a physical struggle with

Foerster. According to ballistic evidence, Foerster was shot once with Acoli 's

weapon, then shot with his own service revolver twice more in the head,

killing him." Acoli I, slip op. at 3. We also observed that there were no

eyewitnesses to the shooting and noted a statement filed by the county

prosecutor in response to Acoli being considered for parole, which speculated

that a third party "might have fired Foerster's gun." Id. at 23 n.9.

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families' and Trooper Harper's continuing trauma, pain, and suffering cannot

be overstated.

It is beyond cavil that Acoli's receipt of the maximum lawful sentence

available at the time was, to say the least, appropriate under the circumstances.

However, it is equally beyond any dispute that parole determinations must be

based upon "what a man is and what he may become rather than simply what

he has done." Id. at 222 (majority opinion) (quoting Greenholtz v. Inmates of

Neb. Penal & Corr. Complex, 442 U.S. 1, 10 (1979)). That was not the case

here.

II.

An understanding of parole and its importance to the public's safety is

central to recognizing why parole determinations must be based upon an

inmate's experience and development since he committed his crime, and why

the Parole Board's actions here established a disincentive for inmates to pursue

proper conduct while incarcerated, thereby threatening the public's safety.

"Parole is a period of supervised release 'by which a prisoner is allowed

to serve the final portion of his sentence outside the gates of the institution on

certain terms and conditions, in order to prepare for his eventual return to

society.'" State v. Black, 153 N.J. 438, 447 (1998) (emphasis omitted)

(quoting State v. Oquendo, 262 N.J. Super. 317, 324 (App. Div.), rev'd on

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3

other grounds, 133 N.J. 416 (1993)). Our current procedure for determining

whether an inmate should be paroled was established by the Legislature's 1979

enactment of the Parole Act that changed the entire process.

The purpose for the new legislation was described in accompanying

statements issued by the Assembly, Senate, and Governor in 1979. In those

statements, the need for the reform was based upon "uncertainties about parole

and perceptions of injustice in the parole process [that had been] key causes"

of riots in prisons in New Jersey and elsewhere. Assembly Judiciary, Law,

Public Safety and Defense Committee, Statement to Assembly Bill No. 3093,

at 1 (Dec. 3, 1979). The Legislature envisioned that the reforms would

"contribute to the effectiveness of parole as a tool for reducing recidivism, and

[would] contribute to the maintenance of institutional order." Ibid. (emphasis

added).

Prior to the 1979 reforms, an inmate was obligated to "prove his fitness

to be released in order to be granted parole." Id. at 2; see also In re Parole

Application of Trantino (Trantino II), 89 N.J. 347, 355 (1982). One of the

major reforms was to shift the burden of proof as to an inmate's eligibility for

parole from the inmate to the Parole Board. The legislation required that an

inmate "would be paroled on his primary eligibility date unless the State

proves 'by a preponderance of the evidence that there is a substantial

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4

likelihood that the inmate will commit a crime if released.'" Ibid.; see also

N.J. State Parole Bd. v. Byrne, 93 N.J. 192, 205 (1983) ("The legislation shifts

the burden to the State to prove that the prisoner is a recidivist and should not

be released.").

The 1979 Parole Act therefore "create[d] a presumption of release on [an

inmate's] parole eligibility date." Kosmin v. N.J. State Parole Bd., 363 N.J.

Super. 28, 41-43 (App. Div. 2003). Moreover, it "create[d] a legitimate

expectation of release . . . absent findings that justification for deferral exists,"

and gave rise to "a federally-protected liberty interest." Trantino VI, 166 N.J.

at 197 (quoting Byrne, 93 N.J. at 207).

The reasons for why this change was important to the overhaul of the

process was summarized as follows:

First, it is felt that this shift better complements

the generally longer sentence of the code and that the

power to decide how long a convict should be

imprisoned belongs to the sentencing court rather than

the parole board. Secondly, it is argued that the shift

better reflects the practicalities of the parole process.

Since the key issue in determining fitness for parole is

the question of recidivism and since it is impossible

for a person to prove he will not do something, the

present practice is for the authorities to present

evidence showing a likelihood of future criminal

activity in order for there to be a denial of parole.

Thus, it is felt that in shifting the burden, Assembly

Bill No. 3093 merely confirms statutory law to the

practical dynamics of the parole process. The third

reason offered for the shift in burden is the hope that it

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5

will make the parole process more consistent and

predictable. The official reports on the Rahway and

Attica riots cited uncertainties about parole and

perceptions of injustice in the parole process as key

causes of the riots.

[Senate Law, Public Safety and Defense Committee,

Statement to Assembly Bill No. 3093, at 2-3 (Dec. 10,

1979) (emphasis added).]

As the Legislature recognized, predictability is vital to the parole

process. In order to maintain public safety, inmates must understand that their

protected interest in being paroled is honored by the grant of parole to

deserving prisoners. The anticipation of parole for inmates who have served

sentences with little or no incidents or infractions provides positive

reinforcement for behavioral change, and is a viable incentive for prisoners to

rehabilitate themselves while in prison and avoid engaging in criminal

behavior. The possibility of parole encourages prisoners to adhere to prison

rules and maintain good behavior in prison.

For that reason, if model prisoners, like Acoli, perceive that parole

decisions are not based upon an inmate's development and rehabilitation since

he committed his crime, but upon the crime itself, there is no incentive to

maintain order, creating a risk of a resurgence in the prison unrest that the

1979 Parole Act sought to address. The possibility of that resurgence is

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6

heightened where, as here, there is insufficient evidence that a candidate for

parole is substantially likely to commit a crime if released.

III.

Under the Parole Act, a Parole Board's decision to grant or deny parole

for crimes committed before August 1997 turns on whether there is a

"substantial likelihood" that the inmate will commit another crime if released. 2

N.J.S.A. 30:4-123.53(a) (1979); see also N.J.A.C. 10A:71-3.10(a); Acoli II,

224 N.J. at 235-36 (2016) (Albin, J., dissenting); Williams v. N.J. State Parole

Bd., 336 N.J. Super. 1, 7 (App. Div. 2000). "The [Parole] Act thus posits the

likelihood of future criminal conduct as the determinative test for parole

eligibility and effectively establishes a presumption in favor of parole."

Trantino II, 89 N.J. at 355-56. Under this test, the burden is on the Parole

Board "to prove that the prisoner is a recidivist and should not be released."

Byrne, 93 N.J. at 205.

"The [Parole] Board is the administrative agency charged with the

responsibility of deciding whether an inmate satisfies the criteria for parole

release under the Parole Act of 1979." Trantino VI, 166 N.J. at 173 (quoting

2

The standard for parole for crimes committed after 1997 is different. That

standard requires that there be proof "by a preponderance of the evidence that

the inmate has failed to cooperate in his or her own rehabilitation or that there

is a reasonable expectation that the inmate will violate conditions of parole . . .

if released on parole at that time." N.J.S.A. 30:4-123.53.

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In re Parole Application of Hawley, 98 N.J. 108, 112 (1984)). In determining

parole eligibility, the Parole Board is to consider the twenty-three non-

exclusive factors enumerated in N.J.A.C. 10A:71-3.11(b), including

commission of offenses or serious disciplinary infractions while incarcerated;

the nature and pattern of previous convictions; facts and circumstances of the

offense; participation in institutional programs; statements of institutional staff

as to readiness for parole; relationships with institutional staff; changes in

attitude; personal strengths and motivations; statements from the inmate, the

prosecutor's office, and the victim's family; and the results of objective risk

assessment instruments. However, the Parole Board is not required to consider

each and every factor, rather it should consider those applicable to each case.

McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 561 (App. Div. 2002).

It should not place undue emphasis on any one factor, especially the crime that

the inmate committed. See Trantino VI, 166 N.J. at 189-90 (stating the Parole

Board may not rely on selective portions of the record that support its

determination of likely recidivism while overlooking or undervaluing

conflicting information).

Here, "the Parole Board's finding that [Acoli] was substantially likely to

recidivate was based not on a preponderance of the evidence in the record, but

rather on the [Parole] Board's selective and arbitrary reliance on only those

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8

portions of the record that could possibly support the [Parole] Board's

conclusion," and which related to his refusal to admit that he shot Foerster. Id.

at 189. In reaching its conclusion that there was a substantial likelihood Acoli

would commit a crime if released on parole, the Board ignored "substantial

evidence in the record, spanning many years of infraction-free incarceration

and [a] favorable psychological evaluation[], that demonstrated [Acoli]'s

likelihood of success on parole." Ibid.

As recognized by the majority's opinion, the Parole Board's questioning

of eighty-two-year-old Acoli and its final decision "heavily relied," ante at __

(slip op. at 21), upon Acoli's commission of the crime and "for the first time,"

ante at __ (slip op. at 29), his speculation about how his victim died, which

differed from what his jury found more than four decades ago. 3 At the 2016

hearing, as he did when we last reviewed this matter, and for decades before

that, Acoli continued to maintain that he blacked out and did not know who

actually shot Foerster. In response to questioning at the 2016 hearing that

called for Acoli to speculate as to who he thought might have shot the Trooper,

3

As we observed in our earlier opinion, "Acoli consistently claimed that he

was temporarily unconscious or 'blacked out' when Foerster was shot, having

been grazed on his head by a bullet shot by Harper. He had no sign of such an

injury when arrested." Acoli I, slip op. at 3 n.2.

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9

Acoli stated it could have been "friendly fire," and he did not mention whether

he was conscious.

As the majority discusses at length, that speculation was inconsistent

with his previous assertion that he did not know who shot Foerster and

contradicts his claim that he passed out before the Trooper was shot. All of

the other factors relied upon by the Parole Board in reaching its decision to

deny parole were essentially identical to those that the Parole Board panel

relied upon when it denied Acoli parole in 2011. 4 The only new substantive

material considered by the Parole Board was a report from a psychologist who

formulated a much less favorable opinion about Acoli than the report the

Board considered in 2011, from Lois D. Goorwitz, Ph.D. 5 The new report,

4

At oral argument, the Parole Board agreed that it primarily relied upon

Acoli's refusal to admit he pulled the trigger on the gun that killed Trooper

Foerster, and that nothing else had changed about Acoli since we last reviewed

the Parole Board's 2010 denial.

5

On remand from the Supreme Court, the Parole Board did not explain why it

failed to rely on Goorwitz's report, but instead considered a new, less favorable

report from a different professional.

In his dissent, Justice Albin summarized the factors that we found in

2014, which I conclude remained unchanged in 2016, and Goorwitz's findings.

He stated the following:

The appellate panel made the following observations:

(1) Acoli has not committed a single disciplinary

infraction since 1996, and accumulated only minor

(continued)

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which recommended against parole, also relied upon Acoli's refusal to admit

he fired the weapon that killed Trooper Foerster. 6

(continued)

infractions since 1979; (2) his institutional progress

report indicated that he "'has displayed a positive

rapport with both staff and inmates'"; (3) Acoli

"completed at least 100 different programs for self-

improvement as well as vocational training"; (4) Acoli

was a prisoner representative for the correctional

facility's social resource organization, and as a result

of "his positive institutional record, he became a

member of the Honors Unit program"; and (5) in 2008,

prison staff reported that Acoli had "demonstrated

adequate coping skills . . . and ability to establish

positive interaction with others," and that he was

expected "to be able to transition to the community if

paroled."

The appellate panel also referenced the pre-parole

mental health evaluation conducted by . . .

Goorwitz . . . . Dr. Goorwitz noted that Acoli

"'expressed regret and remorse about his involvement

in the death of the state trooper'" and "'appeared to be

answering honestly.'" Dr. Goorwitz also found Acoli

"'to be very cooperative, self[-]reflective, thoughtful,

and non[-]defensive in his responses to the questions

posed to him.'" (alteration in original). She

concluded that "'there were "NO psychological

contraindications to granting parole."'"

[Acoli II, 224 N.J. at 238-39.]

6

Without breaching the confidentiality of the report, it bears mentioning that

it did not state that Acoli said anything about "friendly fire" when asked to

speculate about who killed Foerster.

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After considering the new report and other confidential records, as well

as Acoli's testimony, the Parole Board denied his application, relying upon its

members' dissatisfaction with Acoli's development over the last forty -six years

since he committed his heinous crime. The Parole Board based its decision on

his slow manner of speaking, the lack of depth to his answers, and

significantly, as the majority recognized, the Parole Board's primary concern

that Acoli still refused to admit that he shot Foerster. The Parole Board relied

on that refusal to discount Acoli's repeated expressions of remorse for his

involvement in the conduct that led to the Trooper's death and his exemplary

record as a model prisoner for at least the past twenty years.

The Parole Board's continued reliance on Acoli's refusal to admit to

firing the fatal shots was insufficient to support its conclusion that he is

substantially likely to commit a crime if released. "[T]he Parole Board cannot

insist that [an inmate]'s insight into [his] criminal behavior is impaired by

reason of the fact that [he] will not admit that [he] was the actual shooter."

Kosmin, 363 N.J. Super. at 42. Such reliance is an abuse of the Parole Board's

discretion. See Trantino VI, 166 N.J. at 177-78 (finding that "the Board's

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12

reliance on [petitioner's] inadequate recollection of the details of his crimes to

support its denial of parole constituted a clear abuse of discretion").7

I recognize the deference we afford to Parole Board determinations and

that we will "not lightly reverse a parole-denial decision by the Parole Board."

Kosmin, 363 N.J. Super. at 43. Such action in the case of a convicted

murderer of a law enforcement officer is, to say the least, "unusual." Acoli II,

224 N.J. at 232. But, we remain tasked with "ensuring that administrative

agencies not thwart the law in unpopular cases." Id. at 240 (Albin, J.,

dissenting) (citing Trantino VI, 166 N.J. at 197). "[C]ourts [cannot] permit

agencies of government to create exceptions to the rule of law, applying it for

the many but exempting the disfavored, [without] irreparably damag[ing] the

foundation of our democracy." Id. at 233 (quoting Trantino VI, 166 N.J. at

198).

Where, as here, the Parole Board denies parole because of an inmate's

refusal to accept the facts as found by the jury, its decision cannot stand.

7

Notably, at the 2016 hearing, one of the Parole Board's members expressed

his misguided view of the Court's holding in Trantino VI when he asked Acoli

"Why would we think that you haven't taken a page out of the Trantino

handbook, you know, which is basically, you know, how to -- how to kill a

police officer, and then get paroled for it later on in life by -- by saying I don't

remember?" The same member described the Court's holding again by stating

"Well, it's basically a blanket disclaimer of responsibility for anything that

happened because . . . I just can't remember it."

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"[E]ven the most despised inmate is entitled to the protection and enforcement

of the law." Id. at 234. For this reason, although Acoli may be one of "the

most disfavored member[s] of society," id. at 241, I continue to hew to our

earlier conclusion regarding Acoli's entitlement to parole and I would reverse

the Parole Board's denial in this case. 8 See Acoli I, slip op. at 27-28. I would

do so because our system of justice does not permit anything less.

My view is not altered by the majority's opinion. Its reliance on Acoli's

recent speculation about who may have shot Trooper Foerster fails to

recognize that Acoli's speculation is an opinion about a possibility and not a

statement of fact, and his flawed or even feigned memory loss is not sufficient

cause to deny parole. Despite his speculation, Acoli has always maintained

that he does not know who actually shot Trooper Foerster.

Acoli has completed the penal portion of his sentence. He is now over

eighty years old. He speaks slowly and forgets things. As we previously

noted in 2014, his recollection overall was "consistent, but flawed." Acoli I,

slip op. at 24. Now, years later, Acoli remains consistent in his claim that he

does not remember who in fact shot Foerster. The majority's reliance on his

8

Notably, the Supreme Court did not pass upon our reasoning in Acoli I as it

reversed our determination on procedural grounds, finding that after the Parole

Board's panel denied parole, the next step in the administrative process was a

full hearing before the entire Parole Board. See Acoli II, 224 N.J. at 232.

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flawed speculation as to how he supposes that friendly fire may have caused

Trooper Foerster's death is not sufficient to sustain the Parole Board's actions.

In any event, although not admitting to being the actual shooter, Acoli

has repeatedly expressed his remorse for his involvement in the crime that led

to Trooper Foerster's death, he has disavowed his involvement with the radical

group—the Black Liberation Army—and the necessity for violence, and he

acknowledged the change in his thinking through counseling, classes, and

President Obama's election. Acoli I, slip op. at 24-25.9 Also, as Acoli is now

an octogenarian, there is a substantial decrease in any likelihood that he would

commit a crime if released. See State v. Davis, 96 N.J. 611, 618 (1984)

("[A]ge, as a demographic variable, has consistently been found to be strongly

related to subsequent criminal activity.").

The majority's comprehensive explanation of the Parole Board's actions

does not alter the reality that Acoli, who is one of the longest-serving inmates

in New Jersey, if not the longest, and who has been a model prisoner for

decades, is being denied parole without any evidence that he is substantially

likely to commit a crime if released. Both Acoli and other prisoners who will

9

Progress notes in the record described Acoli's success in prison programs

and individual counseling geared toward developing positive changes in his

attitudes that were also reflected by his testimony about the need to avoid

criminal behavior, his repudiation of violence, and the positive development of

his attitude toward the police and authorities in general and on racial issues.

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look to the Parole Board's actions here and see no reason to hope that they will

be paroled when eligible, are being wrongfully denied the predictability and

justice that the Parole Act of 1979 was intended to secure—not only for their

benefit, but for the benefit of the public as well.

"Because of the Parole Board's unjustifiable and 'obvious overlooking or

undervaluation of crucial evidence,' [I] have no doubt that its determination,

based not on a preponderance of all evidence, but on evidence arbitrarily

selected to support a desired result, is manifestly mistaken and [should] be set

aside." Trantino VI, 166 N.J. at 192 (citation omitted).

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