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known" to the panel, (see Diaz v. Evans, 90 AD3d 1371, Appellate Division, Third Department, 2011), the board rescinded Costello's release.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.