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McGowan v. New Jersey State Parole Board

February 15, 2002

JOSEPH MCGOWAN, DEFENDANT-APPELLANT
v.
NEW JERSEY STATE PAROLE BOARD, RESPONDENT



On appeal from the New Jersey State Parole Board, Number 55722.

Before Judges Stern, Collester and Parker.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 10, 2001

On April 24, 1973, appellant, Joseph McGowan, was indicted for the rape and murder of a seven year old girl. Appellant pled guilty to first degree murder on June 19, 1974 and was sentenced on November 4, 1974 to a term of life imprisonment under N.J.S.A. 2A:113-1 and 2, now repealed and superceded by N.J.S.A. 2C:11-3.

Appellant was initially eligible for parole in 1987. He was denied release and given a twelve-year future eligibility term (FET). He became eligible for parole again in December 1994, at which time he received a twenty-year FET. That decision was appealed to the full Board on June 20, 1994 and affirmed on August 31 of that year. Appellant then appealed to us. We remanded the matter on April 30, 1997 in light of our decision in Trantino v. New Jersey State Parole Board, 296 N.J. Super. 437 (App. Div. 1997), and ordered the Board to submit a more detailed statement of its reasons for both its denial of parole and imposition of a twenty-year FET. Pursuant to our order, on June 26, 1997, the Parole Board issued an amended notice of decision, along with a confidential addenda. The Parole Board stated that pursuant to N.J.A.C. 10A:71-2.1(a), it classified as confidential certain reports,

because they are evaluative, diagnostic and prognostic in nature and if released to the inmate could adversely affect the inmate's rehabilitation or future delivery of rehabilitative services. Specifically, the Panel is convinced that if these evaluations are released to the inmate, at future evaluations the inmate would be aware of how certain responses given to certain questions presented by the examiner could impact the evaluation. The inmate, who has a history of being less than candid to the Parole Board regarding his motivation behind committing the offense and the facts of the offense, could potentially manipulate the results of the evaluation by reviewing past evaluations.

Appellant sought release of the confidential addenda, but we denied his motion on July 23, 1997. While we understand and appreciate the Board's concerns, at this time we find it more important to disclose the confidential reports so that appellant may appreciate the extent of the evidence considered by the Board in reaching its determination. In light of the Board's intention in classifying the addenda, we find no basis for not releasing it at this time. In this opinion, we refer to several reports and evaluations contained therein.

On May 27, 1998, we again remanded the matter in light of the Supreme Court's decision in Trantino v. New Jersey State Parole Board, 154 N.J. 19 (1998), and stated that the record was unclear as to whether there was a substantial likelihood that appellant would commit another crime if released on parole. Appellant appeared again for a hearing before the Board and on November 6, 1998, the Board denied parole and referred the case to a three- member panel of the Parole Board for determination of an appropriate FET. On January 7, 1999, the panel established a thirty-year FET. The full Board affirmed on August 2, 1999. In this appeal, we consider the August 2, 1999 decision.

FACTUAL BACKGROUND

On April 22, 1973, the nude body of a seven-year-old girl was found in the crevice of a large rock formation in Harriman State Park, New York. Her head was twisted under the left side of her body. The child had bled from the nose and had marked swelling of both eyes due to fractures of both orbits. Other injuries included lacerations of her lip and chin, a cervical fracture, dislocation of both shoulders, left temple abrasions, marked swelling in the front of the skull and three loose upper teeth.

Three days earlier, the child had left her parents' house to deliver two boxes of Girl Scout cookies to appellant, a neighbor who lived across the street with his mother and grandmother. At the time, appellant was a twenty-seven year old high school teacher with no prior criminal record. When the child failed to return home, her parents called the police. The police spoke with appellant on two occasions. When he contradicted himself, the police requested that he take a polygraph test which he did voluntarily. After he failed the polygraph, appellant requested a priest, to whom he confessed. He confessed again to the police, and revealed the location of the child's body.

PSYCHIATRIC/PSYCHOLOGICAL EVALUATIONS

On April 25, 1973, appellant was examined and evaluated by a psychiatrist, Noel C. Galen, M.D. Appellant reported to Dr. Galen that he was cutting the grass when the child came to deliver the Girl Scout cookies he had ordered some weeks before. When he entered the house to retrieve money, the child followed. He told Dr. Galen that he was embarrassed because he did not have the exact amount of money for the cookies, so he grabbed the seven year old and forced her into his downstairs bedroom. When Dr. Galen asked about his motive in taking the child downstairs, appellant responded that he intended to rape her. Appellant ordered the child to remove her clothes in a "loud, forceful voice." He then "became excited enough to ejaculate" two or three inches from the child, though he claimed he "never completed the [sexual] act." Rather, he claimed that he ejaculated on his fingers and fondled the child's vagina. Contrary to appellant's assertions, however, the autopsy revealed the child suffered a ruptured hymen, severe vaginal bruising and semen traces in her vagina, indicating that appellant had penetrated her.

Appellant then told Dr. Galen, "[A]ll of a sudden I realized what I had done .... If I let her go ... my whole life was gone. All I could think of was just to get rid of her." The appellant then described the murder in detail.

... I grabbed her and started to strangle her and I dragged her off the bed, tossed her into the corner of my room on the tile floor off the rugs .... She was trying to, you know, scream, and was fighting back, but of course she really couldn't, since I had my hands around her throat. Uh ... she stopped struggling. Just sort of lay there. I got dressed.... I had been sweating so violently .... I went out to the garage. I got some plastic bags to put her in. [Returning from the garage] I saw that she was still moving so I began strangling her again and I hit her head on the floor repeatedly. She began to bleed from the nose, mouth, face, I don't know where. There was blood all over the floor. I then grabbed one of the plastic bags and put it over her head and twisted it tightly and held it there until she stopped.

Appellant then put the victim in a plastic bag, wrapped her in an old couch cover, tied the bundle with cord, placed the body in the trunk of his car and cleaned up the blood with old T-shirts. Appellant then drove approximately fifty miles to New York State and dumped the child's body down an incline in Harriman State Park. He unwrapped the body, placed it under a rock ledge and put the plastic bags and couch cover in a roadside garbage can. He then returned to his home and joined the search for the child. He later said, "I felt better when I went back to the house. I slept well."

In his June 6, 1973 report, Dr. Galen related that appellant "has given a well-documented history of sexual attraction to young girls. This, coupled with a clearly evident picture of a dominating and overprotective mother, would strongly hint at some profound problems in [relation] to his making a normal adjustment to an adult woman." Dr. Galen speculated that "younger girls would pose no threat to his rather shaky concept of his manhood." The psychiatrist based his opinion on appellant's admission that he had been sexually aroused by young girls for about a year prior to the murder and, more specifically, that he had been aroused by his twelve year old cousin. Appellant also admitted to both masturbation and rape fantasies and attraction to ten and eleven year old girls.

On May 10, 1973, psychologist Emanuel Fisher, Ph.D., administered a battery of psychological tests to appellant. Dr. Fisher reported that "psychologically, Mr. McGowan emerges as "an exceedingly labile, tense and hysterical personality whose tendency is to act out mood and impulse in a very explosive manner. Rational controls are weak, despite the fact that he is an exceedingly brilliant individual." Dr. Fisher found that appellant had "a tremendous amount of underlying, unconscious hostility" and that he "repressed, avoided, sublimated, and intellectualized." Although appellant came across as "a very proper, conventional, conforming individual, [t]his exaggerated propriety, conventionality and conformity, constitute his defensive facade, for himself and for others, against the underlying depression and hostility of which he is unconscious."

Appellant's history of attraction to young girls, as well as repression and intellectualization, was reiterated in an October 13, 1973 neuropsychiatric report by Abraham Effron, M. D. After relating to Dr. Effron his "fantasies of sexual relations with little girls," appellant recalled that while working as a summer camp counselor at age nineteen, he became sexually aroused when a particular girl sat on his lap. He also repeated a detailed description of the rape and murder to Dr. Effron.

Dr. Effron interviewed appellant's mother who related that appellant's father "was much closer to the boy [than she was] and would take him out often." His father died of a heart attack while appellant was in college. After appellant completed college, he moved back home to reside with his mother and remained there until he was arrested. Dr. Effron concluded that:

He does not show what he necessarily feels .... He conceals many facets of his complex true self and his true identification and related emotional difficulties. He tries to hide his inability to truly establish his masculinity .... He experiences tension whenever he gets close to the opposite sex .... This passivity generates anxiety which in turn feeds on itself and results in a higher state of tension which must expiate itself in a complete loss of self-control or sexual release.

....

He manages to control an underlying psychosis by intellectually holding in abeyance his primitive drives to an inordinate extent, but as in the past and tragically ...


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