On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and Waugh.
Inmate William R. Geiger (the inmate) appeals from final agency action of the New Jersey State Parole Board (the Board) denying him parole and establishing a future eligibility term (FET) of sixty months from January 21, 2009. The inmate was incarcerated at Southern State Correctional Facility at the time his parole was considered. He is serving a life sentence for murder and has already served a concurrent seven-year sentence for unlawful possession of a weapon. We affirm in part and remand in part.
The inmate and his wife, Nancy, were married in 1973. She filed for divorce during August 1976 and moved into her parents' home. The inmate then began to harass, stalk, and threaten her and her mother. In August 1976, the inmate cornered Nancy in her employer's parking lot as she was leaving work. He placed a gun to her head and threatened to shoot her and then kill himself. He was charged with assault with a dangerous weapon, threat to take a life, and possession of a revolver.*fn1
Because the harassing and stalking behavior became very intense, Nancy's employer gave her a special place to park at work, and she changed her telephone number. Then, on December 25, 1976, the inmate followed Nancy, her mother, and her grandmother to Midnight Mass. He had spent that day drinking heavily, although he claimed he was not intoxicated at the time of the crime. Unable to speak with his wife after Mass, the inmate followed Nancy and her family to their home. Once there, Nancy and her grandmother noticed her husband's presence. While Nancy's mother got out of the car and into their house, Nancy and her grandmother remained in the car. The inmate went into the garage, entered the car where Nancy was sitting, fired five shots at her, reloaded his gun, and then fired two more rounds. She died almost instantly of bullet wounds to her head, chest, heart, lung, and brain.
During the investigation, the inmate claimed that he went to the church assuming that Nancy would be there. While trying to talk to her after services, she left with her mother and grandmother. He admitted that he followed them home and claimed that he killed his wife while he was in a "disassociated state." He also asserted that he "lost control" when Nancy's father allegedly took a swing at him with a broom or hoe when he tried to enter the garage.
When the police responded to the scene, the inmate was walking across the lawn from the garage area with his hands on top of his head. He dropped a revolver when the police ordered him to do so. The inmate was then arrested. He made bail on June 8, 1977, and two days later absconded. He was arrested again on June 29, 1977, in Daytona Beach and returned to New Jersey to stand trial.
The inmate was found guilty of murder and unlawful possession of a revolver and was sentenced on December 9, 1977, at which time he was thirty years old. We affirmed his conviction and sentence, and certification was denied by the Supreme Court. State v. Geiger, No. A-1879-77 (App. Div. Apr. 22, 1980), certif. denied, 85 N.J. 113 (1980) (Geiger I). In all, he has been considered for parole on four prior occasions, to wit, in 1991, 1996, 2003-04, and 2006. Prior FETs established after parole was denied the first four times were ten years in 1991; twelve years in 1996; five years in 2003-04; and five years in 2006.
The inmate appealed the 1996 denial of parole establishing a twelve-year FET. Geiger v. N.J. State Parole Bd., No. A-0483-99 (Mar. 21, 2001), certif. denied, 169 N.J. 606 (2001) (Geiger II). Initially, we remanded for reconsideration in light of Trantino v. New Jersey State Parole Board, 154 N.J. 19 (1998) (Trantino IV),*fn2 "which set forth the test for parole fitness on Title 2A offenders as to whether there was a 'substantial likelihood the inmate will commit a crime if released on parole.'" Geiger II, supra, slip op. at 1-2. We noted that Trantino IV clarified that rehabilitation was relevant "only as it bears on the likelihood that the inmate will not again resort to crime" and that it "need not be total or full or real rehabilitation in any sense other than there is no likelihood of criminal recidivism." [Trantino IV, supra, 154 N.J.] at 31; see also [(Trantino VI), supra, 166 N.J. at 197].
In its initial decision the Parole Board found there was a "substantial likelihood" that Geiger would commit a crime if in fact released on parole based on the horrendous nature of the offense, the failure of the defendant to acknowledge his gambling problems, his projection of responsibility for his wife's death on her family, and his reluctance to participate in a halfway house program and in the annual review process. Following our remand, the Board reiterated these findings as well as its conclusion under Trantino IV of a substantial likelihood that Geiger would commit a crime if released on parole. [Geiger II, supra, slip op. at 2.]
We then concluded that the Board's decision was neither arbitrary nor capricious and was supported by substantial evidence. Ibid. As a consequence, we affirmed. Ibid.
The inmate became eligible for parole for the fifth time on August 21, 2008, after serving approximately thirty-one years and five months. Hearing Officer Fernando Torres summarized the inmate's case on June 5, 2008, and referred the matter to a Board panel pursuant to N.J.A.C. 10A:71-3.15(b), due to the serious nature of the offense and the inmate's institutional record of loss of commutation time and confinement in detention on July 20, 1989. The following day, inmate sought the addition of some materials bearing on parole in his pre-parole package. On July 9, 2008, the Somerset County Prosecutor objected to the inmate's parole, and he was provided with a redacted copy of this letter on September 9, 2008.
In the meantime, a two-member Board panel apparently considered the inmate's case on June 23, 2008, denied parole, and referred the matter to the full Board for establishment of an FET. The full Board also denied parole on August 13, 2008, explaining that parole was denied because the inmate continued to have a lack of insight into his criminal behavior and viewed himself as a victim for the last thirty-two years. He also had a past history of domestic violence. The full Board determined that "a substantial likelihood exists that [the inmate] would commit a new crime if released on parole at this time." In mitigation, the full Board noted that the inmate had no prior criminal record, was infraction-free since 1989, participated in programs specific to his behavior, participated in institutional programs, had average to above-average institutional reports, and minimum custody status was achieved and maintained. The full Board also deferred the matter for establishment of an FET, which it noted could be in excess of administrative guidelines.
On September 13, 2008, the inmate sent a letter of mitigation to the Board in response to the August 13, 2008, denial of parole. He contended that the Board's determination that he lacked insight was not supported by credible evidence and was contradicted by Dr. Dooley's recent in-depth psychological report and risk assessment, which was consistent with the immediately prior in-depth psychological assessment. He pointed out that the Board ignored the three-month reduction he received in early 2008 for "satisfactory progress" that was recommended by a Board panel.
With respect to the issue of the inmate being a victim, he wrote:
In terms of deeming myself as a victim, the Board has conveniently contorted the question posed by Ms. Washington to their favor. Play your tape back[.] When I responded to her question I was indeed a victim in terms of the Focus on the Victim textbook definition. I had discussed this matter with Chaplain Crossland, our institutional facilitator of the Focus on the Victim program. The Board can not [sic] deny Nancy was my wife, legally, and falls into the category of secondary victims. [See attached F.O.V., Chapter 1, page 4, Victims]. A further investigation of the Board's definition of "victim" in a murder/manslaughter case means the nearest relative, e.g. spouse, of the victim. N.J.A.C. 10A:71-3.48(b) & (c). As I have frequently attested in prior bearings conducted by the Parole Board, I have personally grieved Nancy's loss since 1976 and have been psychologically impacted with her death. I have continued utilizing counseling (Individual Counseling) and various programming (Focus on the Victim and Moral ...