Wednesday, October 11, 2006

John Caher: Judge Goes Beyond Ordering New Parole Hearing for Inmate

By John Caher
New York Law Journal
October 6, 2006

ALBANY - In a rare display of judicial power over the state parole board, Manhattan Supreme Court Justice Marcy S. Friedman has told the Division of Parole to release a convicted killer unless it can come up with a valid reason - other than the crimes he committed nearly 40 years ago -for keeping him behind bars.

William R. Phillips, a 76-year-old, half blind, diabetic cancer victim and stroke survivor who the parole board has described as a "model prisoner" posing no threat to society, has been denied parole four times.

Justice Friedman's ruling yesterday marks the second time a court has criticized the denial of parole for Mr. Phillips as irrational and improper, but the first where a judge has all but ordered his release.

When reviewing a determination of the parole board, the judiciary's sole remedy is to afford the petitioner a new hearing. Justice Friedman did just that in Phillips v. Dennison, 103509/06. But she went one step further and restrained the board from considering anything other than Mr. Phillips' behavior since his last parole denial. His prison record at least through 2005 is unblemished.

The decision will be published Thursday.

"[W]here the Parole Board abdicates its responsibility to follow the statute, as here, the court may properly intervene," Justice Friedman wrote.

Mr. Phillips is a former New York City police officer who killed a 19-year-old prostitute and her pimp in 1968 and tried to kill another person. It was several years later, after he was caught shaking down Xaviera Hollander, the legendary madam of a 51st Street brothel and author of "The Happy Hooker," that he was arrested for the murders and attempted murder.

After his arrest for the Hollander incident, Mr. Phillips became a star witness for the Knapp Commission, which uncovered widespread corruption within the New York City Police Department. His notoriety from the commission's hearings brought forth evidence of the 1968 crimes. After two trials he was ultimately convicted in 1974 and sentenced to a 25-year-to-life term. Mr. Phillips has been incarcerated ever since.

In prison, Mr. Phillips has amassed a perfect disciplinary record. He earned a legal research certificate and taught legal research to other inmates for 17 years, served as deputy superintendent of the prison law library, earned bachelor's and master's degrees and participated in numerous training and leadership programs. Two now-deceased judges wrote letters recommending Mr. Phillips' release and even the chairman of the parole board said Mr. Phillips had rehabilitated himself. Mr. Phillips has a job awaiting him at Manhattanville College and an offer to live with his niece.

Initially, the parole board denied release contending Mr. Phillips was a continuing threat to society.

However, after Manhattan Supreme Court Justice Alice Schlesinger in 2003 found that reasoning absurd and ordered a new hearing, the board changed its stance. It apparently no longer claims Mr. Phillips is dangerous, but that to release him would deprecate the seriousness of his offenses and undermine respect for the law.

Board's 'Lip Service'

Justice Friedman is not buying it.

In an 11-page decision dated Sept. 29 but released yesterday, she said the parole board "merely paid lip service" to its statutory obligations and delved into forbidden territory by considering penal policy.

She pointed specifically to Mr. Phillips' 2005 parole hearing, where board Chairman Robert Dennison called the convict a "model inmate" but asked, "How many years is enough for taking two lives and trying to kill a third?"

That question, Justice Friedman suggested, was answered by the sentencing court 31 years ago.

"[T]he board impermissibly based its denial on a non-statutory factor - its opinion as to the proper penalty for the crime - while in effect disregarding both that the petitioner has achieved a complete rehabilitation and that the statutory scheme required the Board to take this factor into account," she wrote.

Justice Friedman also said the board's third denial of parole, when it claimed that Mr. Phillips was a danger to society only to get shot down by Justice Schlesinger, "now appears to have been pretextual." She said the most recent parole denial, in 2005, "was similarly based on an improper 'disposition' to deny parole to the petitioner, rather than a fair consideration of the statutory factors."

The court, however, declined in a footnote to address Mr. Phillips' allegation that the board was advancing Governor George E. Pataki's political agenda rather than following the law.

Governor Pataki has advocated an end to parole and critics contend he is attempting to achieve bureaucratically - he has appointed all parole board members - what he cannot achieve legislatively.

Mr. Phillips is among dozens of prisoners raising that allegation in a class action before Southern District Judge Charles L. Brieant (NYLJ, July 20).

Justice Friedman left that issue with the federal court.

Ruling Called 'Firm Step'

Mr. Phillips' pro bono attorney, Daniel M. Perez of Kuby & Perez in Manhattan, said the ruling represents "a firm step toward a court suggesting, if not outright ordering, that the Division of Parole has to release someone on parole."

"I am not aware of any case in which that was done, but I am glad that Justice Friedman issued this order," Mr. Perez said. "It is clear that the Division of Parole will just continue to deny him parole," he said, adding that at some point, "someone needs to tell the Division of Parole that enough is enough and it is time to release him."

Parole-eligible inmates and their attorneys have been frustrated that the courts have generally found themselves powerless to do anything other than afford prisoners new hearings.

After serving the minimum portion of a sentence, an inmate is automatically granted a parole hearing every two years. After an inmate is denied parole, he usually goes through the administrative process - almost always losing - and then heads to court. If an inmate does not prevail on an Article 78 proceeding at the trial level, and few do, he then attempts to appeal.

However, by the time the appeal gets before an appellate division nearly two years has passed and the appellate panel dismisses the case for mootness: Since the court can do nothing but order a rehearing and the inmate has one coming up, there is no reason for the judiciary to get involved, the courts reason.

Typically, the inmate is again denied parole at the next regularly scheduled hearing and the cycle begins anew.

But Justice Friedman's ruling threatens to alter that routine, if other judges and appellate courts agree that there are times when the courts can direct a remedy other than a rehearing.

"What purpose does the judiciary serve if all they can do is tell the executive branch what it should do?" Mr. Perez asked. "At a certain point, the judiciary has the power to command the executive branch to take certain acts, and I think this is one of them."

Assistant Attorney General Neil S. Shevlin defended the parole board.

Division of Parole spokesman Scott E. Steinhardt yesterday declined comment on what he referred to as "ongoing litigation."

It was not immediately clear if the Division of Parole will appeal, but it has 30 days to make that determination.

Christine Pritchard, a spokeswoman for the attorney general, said the ruling is under review and the Department of Law will confer with its client before deciding on a course of action.

- John Caher can be reached at