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Trantino v. New Jersey State Parole Board

June 09, 2000

THOMAS TRANTINO, APPELLANT,
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.



Before Judges King, Wallace and Fall.

The opinion of the court was delivered by: Fall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: April 20, 2000

On appeal from the New Jersey State Parole Board.

Appellant, Thomas Trantino, a New Jersey State prisoner, appeals from the June 9, 1999 final administrative decision of respondent, New Jersey State Parole Board (Board), denying him parole and from the November 10, 1999 decision of the Board establishing a future parole eligibility term (FET) of twenty years. These decisions were rendered by the Parole Board upon the Supreme Court's remand of the Board's prior denial of parole to Trantino. See Trantino v. New Jersey State Parole Bd., 154 N.J. 19 (1998) (Trantino II).

While conduct is often dictated by other factors, such as the application of moral convictions and beliefs, as a free society we are governed by constitutional standards and the laws enacted that are designed to reflect those standards. Reasonable differences in the application and interpretation of those standards and laws are often manifested in the form of legal disputes that dictate resolution through court action. Fundamental to the fairness of our court system is our principle that the standards and laws by which we live are equally and fairly applied to all. Guided by that principle, we apply the standards and laws of our State to this appeal.

On August 23, 1964, Trantino was convicted of first-degree murder and sentenced to death. His conviction was affirmed on direct appeal. State v. Trantino, 44 N.J. 358 (1965), cert. denied, 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed. 2d 479 (1966), reh'g. denied, 383 U.S. 922, 86 S.Ct. 901, 15 L.Ed. 2d 679 (1966). When our Supreme Court invalidated the statute under which the death penalty for first-degree murder was imposed, N.J.S.A. 2A:113-4 (repealed 1979), Trantino's death penalty was commuted to a single sentence of life imprisonment. State v. Funicello, 60 N.J. 60, 67-68 (1972), cert. denied, sub. nom., New Jersey v. Presha, 408 U.S. 942, 92 S.Ct. 2849, 33 L.Ed. 2d 766 (1972). Under the Supreme Court's mandate, Trantino was "sentenced to life imprisonment, nunc pro tunc, as of the date the death sentence was initially imposed, the defendant to be entitled to the same credits as if initially sentenced to life imprisonment." Id. at 67-68. As a result, "Trantino became eligible for parole in 1979," because a person sentenced to life imprisonment under N.J.S.A. 2A:113-4 was eligible for parole after twenty-five years less commutation time and work credits. In re Trantino Parole Application, 89 N.J. 347, 352 (1982).

The history of Trantino's record in prison and his efforts to achieve parole are detailed in our opinion in Trantino v. New Jersey State Parole Bd., 296 N.J. Super. 437, 442-59 (App. Div. 1997), where we considered Trantino's appeal from the Parole Board's April 1996 decision denying him parole and fixing an FET of ten years thereafter. In a majority opinion delivered by Judge Stern, we affirmed the final administrative action of the Parole Board denying Trantino parole and establishing the FET date, and remanded to the Department of Corrections (DOC) "for consideration of an updated application by Trantino for halfway house (or out-of-State transfer) and for findings and a statement of reasons with regard to such application." Id. at 464. Judge Pressler issued a separate opinion, concurring with the remand to the DOC, but dissenting in part, stating:

I am satisfied that the record supports the administrative determination that a pre-release halfway house placement preparatory to Trantino's parole would be the optimum disposition. I believe that the [DOC] acted arbitrarily in denying that placement and, as I have indicated, I would order it to effect that placement now either in the State or as it had earlier planned, outside the State following a period of in-custody evaluation by another prison system. If the [DOC] were to do so on a timely basis, I believe that that action would effectively moot the Parole Board's subsequent actions. If it were not to do so on a timely basis, I would reverse the Parole Board's most recent denial of parole accompanied by the ten-year FET and direct it to fix conditions of parole that would most nearly approximate pre-release placement, including a post-release placement, intensive supervision, substance abuse counseling and psychotherapy and such other conditions as would permit the Parole Board cautiously to scrutinize Trantino's post-release adjustment and behavior. [Id. at 489.]

Judge Humphreys filed a concurring opinion, expressing his "conviction that the Parole Board's decision to deny parole to Thomas Trantino was the correct decision, correctly arrived at in accordance with law and due process." Id. at 490.

Trantino appealed, and the New Jersey Supreme Court granted certification. See 150 N.J. 24 (1997).

In an opinion by Justice Handler, the Court began by reviewing the evolution of the statutory standard for determining parole eligibility, concluding the standard governing Trantino's case is that stated in the Parole Act of 1979, "whether there is a substantial likelihood the inmate will commit a crime if released on parole." Trantino II, 154 N.J. at 31.

After examining the Parole Board's actions in Trantino's case since 1991, the Court observed the Board had concentrated not only on Trantino's recidivism prospects, but also on the extent to which he had become fully rehabilitated. Id. at 30-31. The Court noted "that the Parole Board considered that rehabilitation and recidivism were cognate criteria." Id. at 31. This was an improper premise, reasoned the Court, because rehabilitation is relevant "only as it bears on the likelihood that the inmate will not again resort to crime." Ibid. The Court explained the applicable standard, as follows:

In view of Trantino's status as a Title 2A inmate, the standard governing his parole is not derived from current notions of punishment and sentencing. See N.J.S.A. 2C:43-7.2 (mandating that for violent crimes of the first or second degree the sentencing court must now impose a term of parole ineligibility equal to at least 85% of the term of the sentence); Stacey L. Pilato, New Jersey's No Early Release Act, 22 Seton Hall Legis. J. 357, 395 (1997) (describing recently enacted federal and state truth-in-sentencing acts that have reduced the possibility of parole). The criteria for the parole of Title 2C prisoners, which are influenced by current punishment and sentencing standards, simply may not be applied in this case. Trantino Parole Application, supra, 89 N.J. at 367.

In concluding that the Parole Board's decision must be set aside and the matter reconsidered, we must look primarily to the Parole Act of 1979, in which the Legislature adopted as the standard for parole fitness whether there is a substantial likelihood of future criminal activity if the prisoner is released. That standard for parole release is legislatively mandated, and it is the judiciary's obligation to adhere to express legislative enactments and to effectuate legislative intent. Our holding in no way diminishes or mitigates the heinousness of Trantino's 1963 offenses. . . . From the standpoint of retribution, perhaps no prison sentence, whatever its length, is sufficiently severe. Nevertheless, the punitive elements of retribution and general deterrence cannot, under the law, be the determinative factors in resolving this prisoner's eligibility for parole release. [Trantino II, 154 N.J. at 43-44.]

Because it was "not clear" whether the Parole Board used a "more exacting and difficult test" than was called for, the Court deemed it "equally unclear whether the Parole Board's findings of fact were adequately tailored to the correct test and whether the underlying evidence was sufficient to support a determination conforming to that test." Id. at 32. The Court proceeded to review the evidence before the Parole Board in support of its most recent denial of parole in May 1996. Id. at 32-38.

The Court found that the existing record "discloses substantial evidence of significant rehabilitation tending to demonstrate that Trantino has overcome any likelihood of recidivism[,]" namely, the absence of prison infractions since 1970, his successful work-releases and overnight furloughs, his participation in programs designed to enable him to help other inmates, his participation in individual and group psychotherapy, the consistently favorable reports of his supervisors, and the reports of the two evaluating psychologists, Drs. Bell and Ferguson. Id. at 32-33.

The Court then addressed the Parole Board's main emphasis on Trantino's alleged memory loss about the details of the murders, which indicated, in the Board's view, Trantino's refusal to accept responsibility for his crime. Id. at 33-34. Citing to numerous references in past proceedings, the Court found "evidence in the record that Trantino's memory loss is consistent, long-standing and genuine, and, beyond the issue of recollection, his acknowledgment of responsibility is sincere and legitimate." Id. at 35. The Court noted that even the Board's two psychologists so found, and yet the Board failed to explain adequately its rejection of its experts' conclusions. Id. at 36.

In its April 1996 decision, the Parole Board had suggested that long-term psychotherapy might be necessary for Trantino to recover his memory of the details of the crime; it was for that reason that the Board had imposed a ten-year FET. But, in the light of the evidence that Trantino's memory loss was genuine and that he had nonetheless accepted blame for the crime, the Court ruled the record did not justify the ten-year FET or the mandate of long-term therapy. Id. at 37-38.

In setting aside the parole denial, the Court "remanded to the Parole Board to reconsider the basic issue of whether Trantino is now ready to be paroled." Id. at 39. On that remand, counseled the Court, "the Parole Board is obligated to apply the proper statutory standard." Id. at 44. The Court then purported to mold the shape of that remand. First, it listed the evidence in the existing record that tended to disprove the likelihood of recidivism, and it directed the Parole Board to "give weight" to that evidence. Id. at 39. In the light of that evidence, decreed the Court, "punishment is no longer a material consideration in the parole determination." Ibid.

Second, the Court reviewed the permissible conditions that the Board might choose to impose, including pre-release conditions such as work details, furloughs, and minimum security status, or post-release conditions, such as intensive supervision and drug testing. Id. at 40. The Court also noted the viability of placement in a halfway house and the DOC's unreasonable rejection of such a placement. Ibid. The Court ordered the DOC to consider such a placement if the Parole Board, after the remand, chose to request it, and required the DOC issue a statement of reasons for its decision either way. Id. at 40-41. The Court listed the pertinent factors, derived from the governing regulation, that the DOC must consider. Id. at 41-42. The Court also added its own observation that "[t]he record does not support a finding that concerns of safety would be a basis for the denial of halfway house transfer." Id. at 42.

With this procedural background and the focus of the Court's decision in Trantino II, we now review the actions and decisions of the Board and the DOC on the remand mandate.

After the Court's decision in Trantino II, Trantino applied to the DOC for transfer to a halfway house. That application was approved, and on August 18, 1998, Trantino was transferred from Riverfront State Prison to Talbot Hall in Kearny, New Jersey for evaluation and assessment. Following months of evaluation and program participation, a Classification Committee hearing was held and a determination was made that a halfway house was an inappropriate custody assignment for Trantino, and he was transferred to South Woods State Prison. *fn1

In its June 9, 1999 final decision, the Parole Board explained to Trantino how it had interpreted the Supreme Court's remand instructions in Trantino II, as follows:

Subsequent to the Supreme Court's decision, the Parole Board determined that the only way to reasonably comply with the standard the Court had set forth was to engage in a comprehensive review of your case. The Parole Board is of the opinion that to review your record only through to the time of your last parole hearing, just over three years ago, would have resulted in an incomplete and inadequate assessment of whether it is likely or not you would commit a crime if released on parole. Therefore, the Parole Board engaged in a process of updating and reviewing an extensive amount of information regarding who you were in the past, and who you are now, with the intent of assessing who you are likely to be in the future.

The Board added it had attempted "to obtain information previously not available to the Parole Board that would shed light on the person you were prior to August, 1963 when you brutally murdered one police officer and a provisional police officer in a bar in Lodi, New Jersey."

The remand process began in July 1998, when Trantino was interviewed by the Board's hearing officer, Efrain Feliciano, who then referred the matter to the Board. In September 1998, the Attorney General filed a letter with the Board opposing parole and requesting an "informational hearing." Trantino's counsel filed a letter objecting to any "new information," urging that the Court's remand allowed consideration of the existing record only. The Board granted the Attorney General's request.

The Attorney General retained a psychologist, Dr. Eilers, to examine Trantino; he did so in November 1998. Before Dr. Eilers submitted his report, the Attorney General, in December 1998, withdrew his request for an informational hearing, though he continued to oppose parole based on the report of Dr. Welner *fn2 and psychological testing from September 1998.

The Board permitted Trantino to submit the report of his own psychologist, Dr. Rosenfeld. Trantino requested the Board grant Dr. Rosenfeld access to all documents that Dr. Eilers had reviewed. Citing the Attorney General's withdrawal of his request for an informational hearing, the Board denied Trantino's request.

Trantino filed an application with us for leave to appeal from the Board's "denying appellant access to certain materials and denying an informational hearing and the right to present expert testimony." By order entered on February 4, 1999, we directed the Board to provide Trantino with copies of all tests, evaluations, and other documents considered by the Board and its experts, subject to our in camera review of any documents claimed by the Board to be confidential. We denied Trantino's application for leave to appeal with respect to the denial of an informational hearing and from denial of Trantino's request to present live expert testimony before the Board.

In compliance with the order, the Board submitted to us numerous documents it claimed were confidential. By order of March 4, 1999, we ordered the Board to turn over all but one of the documents (an "Internal Memorandum") to Trantino's counsel, but directed that the released documents not be shown to Trantino himself.

The Parole Board adduced the following evidence during its hearings.

On February 3, 1999, the Board conducted a telephonic interview with Joseph Trabucco, Director of Assessment and Education at Talbot Hall, a facility where inmates were given psychological tests. Trabucco's qualifications included a master's degree in psychology. In September 1998, Trabucco administered to Trantino a 175-question true-false standard psychological test known as the MCMI-III. The report itself indicated the results should not be considered definitive or in isolation, and that it "should be evaluated in conjunction with additional clinical and biographical information."

In his interview with Parole Board Chairman Consovoy, Trabucco described an incident during the testing that he deemed significant in assessing the risk of release. Trabucco stated he tested Trantino on the issue of substance abuse within the year prior to September 1998, which testing disclosed Trantino had no substance abuse problem. Trabucco stated that when he asked Trantino, in September 1998, to again answer the substance abuse questions on the basis of his whole lifetime, Trantino became "sort of agitated," not acting violently but "definitely perturbed." Trabucco noted Trantino's "veneer . . . started to . . . crack a little bit." According to Trabucco, Trantino responded in the following manner:

His face was kind of red, he was slightly more animated and agitated. And he said, You know, I know it's not you, Mr. Trabucco, but, you know, those guys at corrections, they're out to get me. And he went into this kind of spiel about how it wasn't me that was making him take this test, but other people, and they were going to take the results and do what they wanted to do anyway. And we got him to sit down again, and then he got up the third time and was then agitated enough, now again, I didn't feel threatened, I didn't feel, you know, that he was going to hit me or anything, but he -- it was the only time in this whole experience here when I -- when I sensed that that veneer had cracked to some extent. He was highly animated and agitated, took his glasses off, was sort of pacing, was a very different Mr. Trantino then [sic] I think most people get to see. And -- and well, he didn't take -- the outcome was we didn't -- we couldn't get him to sit down and take the other part of the test, and I'm not sure it mattered much in the long run anyway.

But as I look back and look at the results of the testing and his experience here, I mean I think what -- what it indicated to me was, that when -- when you put him in a situation, when you press him, or put him in a situation he doesn't feel in control or totally comfortable with, you begin -- you begin to see this other side of -- of this person, which, you know, the cool calculated responses tend to vanish, and the agitation sets in.

From that reaction, together with some of the test responses, Trabucco surmised Trantino had learned over time to give the prison authorities what they wanted - creating a kind of "facade" - but when pressured or denied control over a situation, the "real" person began to emerge. Based on that incident, Trabucco opined that, "given the right stresses," Trantino could resort to violence. He concurred with Consovoy's observation that there was "some" risk of recidivism.

Trabucco reported to the Board that the results from the MCMI-III test revealed Trantino to be manipulative and deceptive, with a deficient social conscience. With regard to potential for violence, the report concluded: "Although violence is not a major characteristic of this inmate's behavioral repertoire, there may be occasions when violence can be provoked, although not readily." An Assessment Report of the testing was prepared by Cynthia Smarook, an assessment counselor at Talbot Hall. Smarook noted the test results indicated a low potential risk for recidivism, but Trantino's potential for committing a future violent act was greater than 60% to 70% of other inmates. During his thirty-day stay at Talbot Hall, Smarook stated Trantino earned an above average rating for his behavior, acting respectfully toward staff and offering support to his peers. Smarook summarized her findings as follows:

It is clear that Mr. Trantino has adjusted well to prison life and has adapted to the structured setting of a prison. The question is how much of this change is superficial and how much has to do with a genuine change in beliefs and attitudes that would result in a positive outcome in the less structured setting of a halfway house. Mr. Trantino's test results raise some serious concerns as to his ability to make this transition. His testing indicated that he often acts in a devious and manipulative manner and is inclined to deduce [sic] others into his schemes and plots and that he attempts to evade responsibility through manipulation and deception. The testing also indicated he is a very high risk for escape.

Although testing can at time[s] be suspect and the individual must be viewed in a holistic manner, it is obvious that at this time there are serious questions as to Mr. Trantino's ability to function successfully in a less structured setting. Based on the above concerns, we feel the classification committee should consider having Mr. Trantino remain in a more secured setting rather than a community corrections placement.

Smarook was present during the September 1998 MCMI-III testing, and she confirmed Trabucco's characterization that Trantino had shown some agitation.

Dr. Ferguson, the Parole Board's chief psychologist, was interviewed by Chairman Consovoy on June 2, 1999. Dr. Ferguson examined Trantino in August 1998 and submitted a report of his findings. Dr. Ferguson had also evaluated Trantino in August 1995, before the Board's 1996 denial of parole.

In his August 1995 report, Dr. Ferguson had observed it was "quite conceivable that Thomas was experiencing a drug induced psychotic state when he committed the offense," which could explain how he was able to commit a brutal crime "so contrary to his moral character." On a test designed to measure likely success on parole, Trantino scored 62%; a score of 35% or lower indicated probable failure on parole, and a score of 65% or higher indicated probable success. In August 1995, Dr. Ferguson concluded Trantino should be released on parole, stating:

Presently, Thomas functions more as a staff member in the prison than as an inmate. He has developed a well rounded and reputable support network which should enable Thomas to manage the increased stress level of independent living optimally. He has a high level of motivation for continued education, therapy and employment. His employment plans appear realistic and attainable, including technical work with his wife's copyrighting [sic] company and creative work in art and therapy.

A transitional setting prior to final release would most likely aid Thomas in making a problem free adjustment on parole after thirty-two years of incarceration, but is not viewed as crucial. The combination of well established social supports, motivation for ongoing treatment, and age will most likely lead to a successful parole outcome. Psychotherapy at this point should focus on issues of conflict resolution, anxiety, and possible emerging depression. Any weakening in the support network or evidence of relapse into substance abuse could lead to disastrous results.

Dr. Ferguson's August 1998 report noted psychological testing had revealed Trantino's anti-social traits, although he was less antisocial than most other inmates; these traits were "not of a magnitude to suggest that Thomas is an imminent risk for parole violation, or violent recidivism if released." Dr. Ferguson noted that while Trantino continued to deny remembering the specifics of the murders, he had accepted responsibility for them. Dr. Ferguson concluded, as follows:

If Thomas can successfully negotiate the difficulties inherent in community halfway house placement for one year, it would seem reasonable to believe that community living on parole would meet with similar success. Special care should be given to ensuring his sobriety through frequent unannounced urine monitoring and continued AA participation. Mental health counseling should also be a condition of parole with an emphasis on developing and maintaining positive coping strategies.

In its decision to deny parole, the Board "relied heavily" on Dr. Ferguson's interviews with it on June 2 and 9, 1999. On June 2, Dr. Ferguson stated Trantino evidenced several characteristics of a "borderline" personality, which he defined as reflecting a "pervasive pattern of instability, interpersonal relationships, self-image and affect and marked impulsivity beginning by early adulthood, and present [sic] by a variety of conflicts." The borderline traits Dr. Ferguson noted as displayed by Trantino were: (1) unstable interpersonal relationships; (2) unstable self-image; (3) impulsiveness; (4) moodiness; (5) chronic feelings of emptiness; (6) difficulty in controlling anger; and (7) paranoia.

In Dr. Ferguson's view, the combination of narcissism and his borderline personality made Trantino potentially explosive and violent. He explained:

Mr. Trantino [is] a particularly dangerous individual . . . [b]ecause of his unpredictability and his unwillingness to clearly examine potential problems in the future. That, you know, makes it almost impossible for him to avoid situations where he is going to be faced with blows to his ego, blows to his narcissism that are going to trigger feelings of, you know, emptiness, and loneliness, and unworthiness, and, you know, wanting to fill those.

If he's in a community setting where he doesn't have a lot [of] external controls, you know, strict supervision, you know, serious consequences for behaviors, and there's a liquor store or bar on the corner, you know, it's going to take an awful lot of effort on his part to not to walk into that bar and sit down and start drinking.

And once that hurdle's crossed, you know, the next guy that walks in and recognizes him and says, "Oh, that's that cop killer." And, you know, "What the hell are you doing here?" And, you know, gets in his face and starts pointing his finger and pushing his buttons, I don't think it takes that big of a leap to say that there is a potential for violence.

Dr. Ferguson felt Trantino could not avoid his personality problems until he accepted they existed. Dr. Ferguson noted that while Trantino did admit his narcissism, he did not acknowledge his other negative traits.

Dr. Ferguson reviewed with the Board the report of Trantino's psychologist, Dr. Rosenfeld, and concluded it should be discounted. Dr. Ferguson stated that since Dr. Rosenfeld had been hired by Trantino, the report was "somewhat slanted in the direction of being favorable to Mr. Trantino." Dr. Ferguson noted that Dr. Rosenfeld admitted his assessment was based on material supplied by Trantino's attorney. Dr. Ferguson also stated Dr. Rosenfeld did not seek out objective data on his own, gave insufficient weight to his own negative findings, and scored one of the psychological tests incorrectly.

Acknowledging his current assessment had changed since his report in 1995, Dr. Ferguson attributed his revised view to his own inexperience in 1995 and to the greater amount of information available to him during his 1998 evaluation. In addition, Dr. Ferguson stated Trantino had a better "support system" in place in 1995, in that he was still married, he was to be released to a halfway house in Camden, and he had a job prospect working as a free-lance copywriter for his wife's firm. Dr. Ferguson noted that since 1995, however, Trantino and his wife divorced, thereby causing "a major setback in terms of his support system." A strong support system, Dr. Ferguson averred, "definitely weighs heavily in terms of the outcomes and prognosis for future adjustment."

Dr. Ferguson was also interviewed by the Board on June 9, 1999, after he heard Trantino's testimony before the Board. Dr. Ferguson stated his opinion had not changed, and that Trantino's testimony confirmed his assessment of his unfitness for parole. Dr. Ferguson cited Trantino's desire to write another book about the crime as evincing his narcissism and lack of empathy for the families of the victims. He again emphasized Trantino's lack of self-awareness and the deterioration of his support system. Dr. Ferguson agreed with Chairman Consovoy's characterization that "in judging risk [Trantino] hasn't made much progress" in the thirty-five years since the crime.

Trantino submitted evidence and testified before the Parole Board. Dr. Rosenfeld submitted two reports on Trantino's behalf and appeared for an interview with two Parole Board members. In his initial twenty-four-page report, Dr. Rosenfeld extensively reviewed Trantino's history and present psychological condition, concluding Trantino did not currently "suffer from any major mental disorder or personality disorder." Dr. Rosenfeld noted that while Trantino demonstrated an anti-social personality disorder before his incarceration, he had engaged in "pro-social endeavors for the past several decades," leading Dr. Rosenfeld to conclude Trantino "has clearly resolved most of the symptoms and behavioral problems that led him to a life of crime and violence." Dr. Rosenfeld conceded Trantino's "grandiosity, a need for attention, and limited empathy," but deemed those traits to be "consistent with a narcissistic personality disorder [rather] than an antisocial personality disorder."

Dr. Rosenfeld observed Trantino had adopted "far more adaptive methods" of expressing his past problems with authority and need for attention, such as engaging in non-violent protests in prison and expressing himself in his writing.

Dr. Rosenfeld found Trantino's claimed loss of memory about the details of the crime consistent with Trantino's claimed alcohol and drug-induced blackout, and with the research on repressed memory. Moreover, Dr. Rosenfeld noted Trantino had acknowledged responsibility for the crime; hence, to demand he also remember actually firing the gun would have negligible bearing on the risk of recidivism. Dr. Rosenfeld stated he concurred with the Supreme Court's comment that the record does not clearly sustain the conclusion that long-term psychotherapy will eventuate in a breakthrough recollection or that such a recollection is necessary, given Trantino's repeated acceptance of responsibility, in order to ensure that he has achieved a level of rehabilitation that eliminates the likelihood that he will, if released, commit crimes. [See Trantino II, 154 N.J. at 38.]

Dr. Rosenfeld acknowledged Trantino's negative risk predic-tors, including his criminal record, past substance abuse, and past attitudes toward authority. Dr. Rosenfeld concluded these factors were mitigated or outweighed by the positive predictors, including long-time abstinence from drugs or alcohol, good conduct on work assignments, insight into the causes of his criminal behavior, lack of violent or anti-social behavior in prison, and "the absence of any overt psychiatric symptoms."

"Perhaps the most important predictor" of the low likelihood of Trantino's recidivism, Dr. Rosenfeld wrote, was that he scored relatively low on the Psychopathy Checklist, a survey designed to detect the characteristics of a psychopath. Dr. Rosenfeld found Trantino's low score was "a strong positive indicator of successful adjustment to parole."

Dr. Rosenfeld stated the risk of recidivism would be lessened by parole conditions designed to ease Trantino's transition into the real world, including placement in a halfway house, life-skills training, outpatient psychotherapy, and outpatient substance abuse treatment, such as attendance at Alcoholics Anonymous (AA) meetings.

In a supplemental report presented to the Board, Dr. Rosenfeld criticized, among other reports, Cynthia Smarook's assessment of Trantino's Talbot Hall testing of September 1998. Dr. Rosenfeld found Smarook's testing was developed on the basis of too-small a pool of parolees to have any predictive effect, rendering the test "virtually meaningless."

Dr. Rosenfeld also refuted many of Trabucco's findings concerning the Talbot Hall incident. Rosenfeld noted that, far from evidencing lack of control, Trantino's agitation at Trabucco's "seemingly inappropriate attempt to generate pejorative psychological test data" was a moderate and appropriate response. Further, Dr. Rosenfeld stated Trabucco, (1) discounted Trantino's good behavior record, (2) incorrectly stated Trantino had no remorse for his crime, and (3) applied a standard of "some risk" instead of the proper standard of "significant" risk of repeat offenses.

Trantino appeared before a two-member panel of the Board on June 4, 1999, and before the full Parole Board on June 9, 1999.

When asked to describe his parole plan, Trantino explained it was now "up in the air" because of his second wife Charlee's divorce from him in 1997. Trantino explained she divorced him out of despair over his continued incarceration, the media attention, and fear of the public's reaction if he were released. However, Trantino stated Charlee remained willing to let him work for her in Pennsylvania when he is released. Except for the complicating factor of his divorce and uncertainty over whether the Pennsylvania authorities would cooperate, Trantino stated his plan was the same as before -- "to live in Camden, get an apartment, say, in Cherry Hill. I would be working for my wife, my wife had a business, I would be going to Rutgers, I would be getting counseling, be going to AA meetings." Trantino claimed to have a "definite support system" in place, consisting of Charlee, his attorney, his AA sponsor, his sister, and his brother-in-law, a retired policeman. Trantino stated he also might be able to work in a bookstore or "learn to be a paralegal." He added, "I know I could get a job in one day, and have many people who could assist me with that." Trantino also stated he would read, write, and paint.

Trantino accepted full responsibility for the murders, testifying he knew he was the one who shot the officers although he could not remember the details. Trantino explained his earlier denials as "defense mechanisms," which he ultimately rid himself of through counseling. Trantino stated he was "ashamed" of what he had done, calling it a "sin." He summarized his feelings about his crime as follows:

Many people may have suffered far more than I'll ever suffer as a result of my actions, and I -- I truly am sorry for any -- any of the crimes that I committed, and any that I may have. . . . [T]he most serious thing of all, the killing of two human beings, shooting Mr. Dorney (phonetic) and Mr. Tedesco, and I wish the families will forgive me, and it breaks my heart that I can't be forgiven, because it's something I need as a human being. But I understand their -- their grief and their feelings towards me, but I try to do good. I don't only try, I do good, and I want to always be good, and I've done that for my entire incarceration.

At the June 4, 1999 hearing, Trantino was questioned about the Talbot Hall incident, in which Trantino allegedly had become agitated when Trabucco sought to expand the substance-abuse questions beyond the previous six months. Trantino denied any such response on his part, adding that he got along well with everyone at Talbot Hall. Trantino also stated he had never seen the Talbot Hall "report."

Apparently, the report was given to Trantino before the June 9, 1999 hearing. After reading the report, Trantino explained he had denied knowledge of the incident at the June 4, 1999 hearing because Chairman Consovoy had not mentioned that Trabucco was the one involved. Trantino recounted his version of the incident:

I know the incident now, there was a woman psychologist, she went to give me a test, and I am saying this is not appropriate, and it was in this computer room. Other people were there, including Dr. Trabucco was in the back, and I just turned to him, I said, Doctor, could you help out over here. And he said what's the problem? I stated the problem and he told her that this man is in remission, he does not have to take that test, that's what he said, not what ever is said there actually, that's not what happened.

Now I might have been perturbed, certainly I was perturbed, but not angry, I was able to talk to him and he straightened it out. He said I didn't have to take it, that I am right. The man is in remission, he took the other test, all these other tests, he is okay, throw that away. That is what he said to that woman.

Trantino denied he ever "minimized" his 1963 abuse of his first wife, as Dr. Rosenfeld had reported. Trantino admitted he had hit or beaten her, for which he was now remorseful and which he had explored during many years of counseling. Trantino stated he was also "ashamed" of having once thrown a steak at her.

With respect to his alleged personality disorders, Trantino acknowledged his past narcissism but felt, through years of counseling and constructive behavior in prison, he had become more self-aware and sensitive to the needs of others. Trantino stated he knew he was not a threat to anyone; nor did he feel threatened by others, and by prayer and meditation he had learned to cope with external stresses. Trantino testified he had talked with counselors "all the time" about his former feelings of inadequacy and blaming of others. Trantino pointed out that, while the psychological testing may have revealed some personality disorders, his actual behavior over many years had not reflected any anti-social orientation. Trantino stated he was a firm believer in "cognitive therapy," pointing out that in his thirty-five years of incarceration, with all its attendant "stressors," he had never used drugs or alcohol and had never committed a violent act.

Interpreting its mandate on remand as being to examine Trantino's entire life, not merely his life since his last parole hearing, the Board analyzed Trantino's personal and criminal history from his birth in 1938 to his 1964 murder conviction, and from his incarceration through 1980.

In its June 9, 1999 decision, the Board observed that its latest review had "been the most extensive in the history of the Parole Board," which effort was warranted based on the heinous nature of [Trantino's] underlying criminal offense, [his] many years of incarceration, [his] clear attempts to minimize the likelihood of future criminal behavior, directions by the State Supreme Court in the last ruling in [his] case, and in all candor the conflicting accounts of reviewing psychologists over the last thirty five years regarding [his] actual progress in reducing the likelihood of future recidivism.

As a result of that review, the Board unanimously concluded that it was "substantially likely [Trantino] would commit a crime if released on parole at this time and that the presumptive future parole eligibility term is clearly inappropriate," requiring that the matter be referred "for consideration of a future parole eligibility term outside of administrative code guidelines."

The Board classified its reasons for denial of parole into the following four areas:

(1) Trantino's psychological profile;

(2) His inadequate parole plan;

(3)His failure to address the factors causing his abuse of his first wife; and

(4) His lack of candor regarding his loss of memory about the murders and other events.

We outline and discuss the Board's reasons for denial of parole to Trantino with ...


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