ALBANY - Six former New York state parole commissioners have signed on to an unprecedented amicus brief that accuses the board of caving in to outside pressure to keep behind bars a “cop killer” who long ago paid his debt to society.

The amicus brief in the case of Pablo Costello accompanies a petition alleging that the Board of Parole withered under a media spotlight and pressure from the New York City Patrolmen’s Benevolent Association (PBA) and rescinded parole for an offender who had been approved for release and was within four days of walking out of prison for the first time in more than 30 years.

Read Costello’s brief and the Board of Parole’s reply.

Former commissioners, including two previous chairmen and three parole board members appointed by Governor George Pataki, who had an especially strict parole viewpoint, are urging the Appellate Division, Third Department, to hold the Board of Parole to a higher standard and prevent it from revoking an inmate’s release simply because victims object after parole has been approved.

Simultaneously, advocates for another “cop killer,” Samuel Hamilton, are gearing up to challenge the repeated parole denial of an inmate who has both the prosecutor who sent him away in 1983 and the state corrections commissioner on his side.

The Costello and Hamilton cases are similar in that both men have spent about 30 years in prison, both have solid institutional records and widespread support, both are in the cross-hairs of the PBA and neither of them, despite repeated visits to the parole board, can secure his freedom.

Further, neither of them killed anybody.

Costello was 22-years-old in 1978 when he was involved in a holdup at a Bay Ridge, Brooklyn, auto parts store. Records show that Costello was the lookout while his accomplice, Luis Torres, robbed the proprietor at gunpoint.

While the robbery was taking place, New York City Police Officer David Guttenberg happened upon Costello’s double-parked car and walked toward the store to find the owner. Costello fled when he saw Guttenberg approaching. Guttenberg went into the shop, happening on an in-progress robbery. Torres shot and killed the 49-year-old father of four.

Costello was convicted of felony murder and sentenced by the late Justice Sybil Hart-Kooper to a 25-year-to-life term, even though the prosecutor recommended a 20-to-life sentence. Torres, convicted of intentional murder, received the same sentence and died in prison in 1986, records show.

When Costello appeared before the parole board for the fourth time in 2009, he was 53-years-old, had a good disciplinary record, had completed numerous vocational and educational programs, had obtained an associate’s degree from Dutchess County Community College and had picked up 12 additional credits from Cornell University. He had authored several scholarly articles in the Puerto Rico Society of Genealogy journal. Costello had job offers and a stable place to live with his wife and 30-year-old daughter, records show.

Regardless, Police Commissioner Raymond Kelly sent the parole board a letter stating that “Costello participated in the murder of a police officer and thus should be denied parole.” The board, however, approved his release in a 2-1 vote.

That set off a firestorm.

Patrick Lynch, president of the PBA, and New York Daily News complained that Guttenberg’s family had not been offered an opportunity to present a victim impact statement, an obligation of the district attorney, not the parole board. The Daily News criticized the parole commissioners who had voted for Costello’s release, Thomas Grant and Christina Hernandez. Guttenberg’s family submitted powerful statements urging the board to reconsider its decision.

Under a provision that permits the board to rescind parole based on “substantial evidence of significant information not previously known” to the panel, (see Diaz v. Evans, 90 AD3d 1371, Appellate Division, Third Department, 2011), the board rescinded Costello’s release. That decision was appealed to the Third Department earlier this month (Costello v. New York State Board of Parole, 514282), and a decision is pending.

In the main brief, pro bono counsel for Costello, Alfred O’Connor of the New York State Defenders Association and Norman Effman, executive director of the Wyoming County-Attica Legal Aid Bureau, argue that the Guttenberg family’s opposition to Costello’s release did not constitute new information as their continuing grief was foreseeable and inferable from prior records.

“The purpose of a rescission hearing is to correct mistakes, not to provide a renewed opportunity to oppose the board’s release decision,” O’Connor and Effman argue.

Accompanying that brief is one by six amici, all former parole commissioners, urging the court to reject the argument the parole board makes in its brief that “the personal, subjective feelings of the [victim's] family members or evidence of the long-term impacts” of the crime satisfies the substantial new evidence standard for rescinding parole.

“It is important that ‘significant new evidence’ actually be new,” argue the amici, represented by Scott Chesin, a partner at Mayer Brown and law intern Jed Glickstein. “Otherwise, the Board is too easily pressured into revisiting decisions simply because some party objects to the initial decision to grant parole.”

The brief was signed by: Pataki appointees Robert Dennison, a former chairman, Vernon Manley and Grant; Barbara Treen, who served 12 years on the board following a 1984 appointment by Governor Mario Cuomo; and two appointees of Governor Hugh Carey, Theodore Kirkland and Edward Hammock, a former chairman, Manhattan prosecutor and senior assistant attorney general.

“The Parole Board cannot treat victims or prisoners fairly in an atmosphere that is easily sensationalized and conducive to improper influence,” the amici argue.

In response, Assistant Solicitor General Frank Walsh counters that the victim impact statements do represent new evidence and greatly expand on the sentencing minutes.

“All that was known at the time [of sentencing] was that Officer Guttenberg’s widow was left to raise four children alone and that Officer Guttenberg’s brother died two weeks later of a massive heart attack,” Walsh said in his brief. “The Board was not previously provided with direct evidence of the personal, subjective feelings of the Guttenberg family members or evidence of the long-term impacts of petitioner’s crime upon them.”

Hamilton

Hamilton was 20-years-old in 1982 when he and two friends attempted to rob a man they did not know was an off-duty housing officer.

Court records indicate that Hamilton and an armed accomplice began following Officer James Carragher in Brooklyn, intending to rob him. Carragher tossed his wallet back to the two robbers and as the accomplice bent to pick it up, Carragher pulled out his service gun. The gunman shot Carragher, who returned fire and struck Hamilton, according to court papers. Hamilton concocted a story that he had been the victim of a robbery but was convicted at trial of felony murder and sentenced by now retired Justice Alain Bourgeois to an 18-years-to-life term.

In prison, Hamilton has been a model prisoner, earning several degrees and serving as an instructor and counselor to other inmates, records show. After three decades in prison, Hamilton’s sole disciplinary infraction stemmed from a 1990 citation for altering clothing, an offense that required him to pay restitution of $4, according to court papers.

Hamilton has come up for parole seven times, most recently in late August, and has been denied release every time, despite support from numerous corrections officials and even Brian Fischer, commissioner of the Department of Corrections and Community Supervision, which includes parole. Former parole board chairman Dennison, one of the amici in the Costello case, also wrote a letter to the board supporting Hamilton’s release and noting that Bourgeois gave him a sentence after trial that was less than the maximum, “which hardly ever happens in police deaths.”

See Transcript of Hamilton’s August Parole Board Interview.

Further, Jonathan Fairbanks, a partner in Zwiebel and Fairbanks in Kingston who prosecuted Hamilton as a Brooklyn assistant district attorney in the early 1980s, said in an Aug. 16 letter to the parole board that he is “absolutely certain” Hamilton did not shoot Carragher.

Fairbanks said “there was not a scintilla of evidence” that Hamilton was the shooter, and that “no one involved in the investigation ever believed that Mr. Hamilton was the shooter or that he was armed.”

Fairbanks said that Hamilton has “led an exemplary life” in prison and deserves parole.

“It is clear that he is a man who is deeply ashamed of his involvement in this crime,” Fairbanks wrote. “However, it is also clear that he is a man who has lived an immensely successful life. I am not sure that I can say I have contributed more to society than Sam has contributed… If he were my brother or son I would be immensely proud of him.”

Regardless, Hamilton was again denied release in a 2-1 decision, with the opposition coming from Commissioner James Ferguson, a former Bronx prosecutor and the son of a retired New York City detective, and Edward Sharkey, the former Cattaraugus County district attorney. Commissioner Hernandez, who had voted to release Costello, supported Hamilton’s bid.

Ferguson, according to a transcript of Hamilton’s most recent interview, said that in 7 1/2 years on the parole board he had never seen an inmate with so much support and did not dispute that the inmate has rehabilitated. But he also noted that there is significant opposition to Hamilton’s release. According to the agency, it has received 708 letters supporting Hamilton’s bid for release, and 4,074 in opposition.

Mostly, though, Ferguson seemed troubled that Hamilton’s two accomplices, including the shooter, have never been brought to justice, and chastised the inmate for refusing to cooperate when the case was fresh. Hamilton said he had seen an informant in jail beaten “senseless” and feared he would “suffer the same fate” if he cooperated. The shooter is believed to be dead.

Hamilton, represented pro bono by attorneys Moira Kim Penza and Christopher Filburn of Paul, Weiss, Rifkind, Wharton & Garrison, is preparing an administrative appeal to his most recent parole denial. In addition, Penza is challenging the prior denial in a case she argued Nov. 20 before the Third Department.

Penza contends that a new provision requiring the parole board to use a risk assessment tool in considering candidates for relief bars the panel from denying parole simply on the basis of the instant offense. Records show that the assessment concluded that Hamilton is at the lowest possible risk to recidivate.

Grant, the former parole commissioner who is among the amici in the Costello case, said in an interview that the Hamilton case is the one that most haunts him from his six years on the panel.

“This is the one I think about,” said Grant, who sat on two of Hamilton’s boards, once voting to keep him in prison and once casting the dissenting vote to set him free. “This guy has done everything he could. He has support from the outside and the inside. He has no prior history. He has done everything asked of him. If he were to get out, he would be a credit to the community outside. He is no more likely to commit an offense than you or I.”

But sources close to the process said PBA President Lynch and his organization exert considerable influence on the parole board—and the PBA’s position is that “cop killers” should never, ever get parole.

Police Benevolent Association

Albert O’Leary, communications director for the NYCPBA, said it makes no difference if the convict intentionally killed a police officer, inadvertently killed an individual they did not know was a cop or was basically along for the ride like Costello and Hamilton.

“In our eyes, he is a convicted cop killer and we oppose parole,” O’Leary said. “We just blanketly oppose parole for individuals who are convicted in the killing of a cop.”

In September, the PBA launched a “Keep Cop-Killers in Jail” web initiative where people who oppose parole for a particular offender or all 64 on the list can instantly make their opposition known to the board. O’Leary said in the first two weeks of the initiative, 300,000 opposition letters were electronically delivered directly to the parole board.

“Our policy at the PBA is if you are convicted of killing a police officer we are going to oppose your parole forever because we believe cop killers should never see the light of day,” O’Leary said. “If you will kill a police officer, a guardian of the public, you would certainly have no qualms about killing an innocent civilian.”

Peter Cutler, spokesman for the parole board, declined to comment on either the Hamilton or Costello matters. The Third Department is likely to render decisions in both cases within the next several weeks.