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De La Roche v. New Jersey State Parole Board

November 19, 2009


On appeal from a Final Agency Decision of the New Jersey State Parole Board.

Per curiam.


Submitted October 21, 2009

Before Judges Sabatino and Newman.

Appellant Harry De La Roche, serving four concurrent life sentences for murdering four of his family members in 1976, returns to this court a fourth time, following the respondent State Parole Board's most recent denial of parole to him on August 22, 2007, and the setting of a Future Eligibility Term (FET) of 120 months on February 20, 2008, to run from the date parole was denied.

The relevant background is amply set forth in our prior opinions of March 19, 2003 (No. A-2138-01), September 28, 2005 (No. A-6652-03), and May 12, 2006 (No. A-6024-04). Suffice it to say, after returning home for Thanksgiving break from his freshman studies at the Citadel Military Academy in November 1976, appellant shot and killed his parents and his two younger brothers at the family residence. After confessing his crimes to the local police, appellant was convicted in 1978 of all four murders. He was sentenced under former Title 2A to four concurrent life sentences.

Since his arrest in 1976, appellant has been continuously incarcerated for the past thirty-three years. Throughout his incarceration, appellant has failed to acknowledge killing his parents and his younger brother, asserting instead that all three had been shot by his other brother, who appellant claims to have shot in retaliation.

When appellant first became eligible for release in May 2002, the Board denied him parole and imposed a ten-year FET term. In March 2003, we remanded that disposition to the Board. De La Roche v. N.J. State Parole Bd., No. A-2138-01 (App. Div. Mar. 19, 2003). We did so because the Board had denied parole based upon appellant's continued failure to accept full responsibility for his family members' deaths, without the Board having competent expert proof demonstrating that appellant's lack of insight placed him at substantial risk for re-offense. Id. at *6.

On remand, the Board arranged an evaluation of appellant by a clinical psychologist, Leland Mosby, Ed.D., which was conducted over four days in May and June 2003. Dr. Mosby concluded that appellant has never addressed the latent psychological problems of anger, rage, repression, and denial connected to murdering his family. Dr. Mosby opined that appellant, if paroled, would be prone to commit further acts of violence if he were confronted with similar stressors. Based upon Dr. Mosby's negative assessment, the Board reaffirmed its prior denial of parole, and appellant sought further review from this court.

Meanwhile, as the result of earning certain credits on his ten-year FET for good behavior within the institution, appellant again became eligible for parole consideration in 2004. The Board arranged another psychological evaluation of appellant, this time by Dr. Kevin Amory, a psychologist, in September 2004. Dr. Amory found that appellant's psychological problems, which were identified by Dr. Mosby, persisted, and he opined that appellant, who continued to blame others for his misdeeds, had "a significant lack of insight into his behaviors and motivations," and was "under-reporting psychopathologies to an extreme degree." Dr. Amory concluded that appellant remained "a poor to below-average risk for parole," predicting that "unless [appellant] becomes willing to deal with the scope of his emotional problems, [he] may have a significantly difficult time with living independently."

Following Dr. Amory's evaluation, two-member and three-member Board panels successively denied appellant parole, and imposed a new five-year FET. The full Board affirmed the five-year FET extension in June 2005, and appellant filed an appeal concurrent with his still-pending appeal of the remanded ten-year FET from 2003.

On September 28, 2005, we affirmed the Board's post-remand decision from 2004, determining that Dr. Mosby's unfavorable 2003 psychological evaluation of appellant supplied the Board with an ample basis to deny parole and to reaffirm the ten-year FET. De La Roche v. N.J. State Parole Bd., No. 6652-03 (App. Div. Sept. 28, 2005). In our opinion, we emphasized the substantial expertise of the Board in parole decisions. Id. at *2; see, e.g., In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd., 135 N.J. 306 (1994).

The current scenario replicates, in large measure, what has previously transpired. Appellant continues to insist that he only shot and killed his brother, Ronald, upon learning that Ronald had killed their mother, father, and younger brother, Eric. Appellant remains compliant within institutional rules while incarcerated. Dr. Amory interviewed appellant on April 19, 2007, for an in-depth psychological evaluation. Dr. Amory found appellant's comments "suggest a tendency towards rationalization of his behavior" when referring to his past deviant behavior. According to Dr. Amory, appellant is "somewhat immature," "lacks insight into his behavior and motivations," and has not "fully developed effective coping skills needed to deal with the challenges of everyday life." While appellant may be able to function in a highly structured and supervised environment, "[i]mpulse control problems may arise in a less structured environment."

Dr. Amory recognized that appellant had participated in a variety of behavioral programs. Nonetheless, appellant appeared to lack understanding of "how to incorporate the information . . . into his everyday life." Dr. Amory, based on appellant's presentation and testing results, ...

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