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Prior to the July 30, 2004 NYS parole hearing, the son of the slain police officer Waverly M. Jones presented a victim impact statement to Richard Dennison, former Chairman of NYS Board of Parole. In the formal interview with Richard Dennison, Waverly Jones, Jr., stated he did not believe Anthony Bottom (and co-defendant Herman Bell) were guilty of the murders, and if they were, that he and his family had forgiven them, advocating for their release on parole. The July 2004 parole board ignored the Waverly Jones, Jr., victim impact statement, which was taken on appeal to the NYS Appellant Court for the Third Department. Although the Third Department, on July 1, 2006, did not reverse the parole denial, the Court did admonish the NYS Division of Parole for its failure to consider the victim impact statement.

Victim Impact Statement and NYS Appellant Court Ruling

As directed by NYS Executive Law §259(i), a factor that must be considered when evaluating an individual for discretionary parole release is the victim impact statement. In this case, a victim impact statement was given in favor of the release of Anthony Bottom. In the 2004 parole hearing, Mr. Waverly Jones, Jr., stated in pertinent parts:

"I, personally, have forgiven these men for the positions that they took back then. I personally feel that when you think of the 60's you think of a very turbulent time, not only in NY but throughout the country and we know historically black people of course, have been oppressed. I do not have hatred or revenge or anything for any of those individuals. I sincerely feel that I don't particularly see them as a danger. I don't see them as someone that's going to come out of prison and commit violent crimes or anything of that nature."

The transcript continues:

"Let me ask you this question sir. Will these gentlemen continually be sent to parole every two years and continually be denied because of the crime that they committed? It sounds like why even go before the Parole Board? It sounds like it's humiliating to go before the Parole Board after so many years demonstrating your viability to society and then that be completely disregarded if the type of crime you committed in the eyes of the Parole Board is too atrocious to be released, because of the nature of the crime is never going to change.

Dennison: Right.

Jones: It's almost like are they going to be every two years at the mercy of the whim of the members of the Board if they feel okay you served enough time? Is that the way they are going to deal with this? Or should it be that there would be so much overwhelming outside support from underneath that they are forced to let them go because there is so much support for this release that to deny him would be like a terrible message to society if there's so much support in favor of him being released? What will it take for the Parole Board to be moved to release them if the nature of the crime is never going to change?

Dennison: I really can't speak about them, I can speak about Mr. Bottom, because every case is a little bit different. I really can only speak about Mr. Bottom, he has been in prison a long time.

Jones: I feel that Herman Bell and Anthony Bottom were both victims as well of a much larger scheme which got them incarcerated to this day, and I feel that their sentence was twenty-five-to life, and to me they have shown great resilience in prison, that their mind is still intact, that their spirit is still eager to do good, and I just pray that the Parole Board will look at the context and the time and send a message to me of healing. Both black and white need to heal from that moment in history because it's still affecting us today, injustices that both suffered. We are the ones dealing with that today, and I feel that men like him who are in that time period and they may have done certain things in their life would send a message to me of forgiveness and healing and time to I say amend that period in history so that we can both enjoy good perpetuity on both sides. I think that keeping them in prison is only strengthening resentment among grassroots individuals and is producing a greater passion in them to pick up a weapon, and I believe that keeping them prison in their eyes is almost like there is no justice, if you will. I just don't think that's a good message to send out, and that's why I requested to meet with the NYS Parole Board."

In 2004, with this statement ignored, Anthony Bottom was denied parole. An appeal proceeded, but the transcript of the victim impact statement was not available at the time of the submission of the Article 7800 in the Supreme Court in Albany. However, it was made available at the time of the appeal to the NYS Appellant Court for the Third Department.

In The Matter of Bottom vs. The NYS Board of Parole, Index No. 98942 (3rd Dept., July 1, 2006), responding to reading the victim impact statement the Court held:

"Although the adult son of the slain police officer appeared at a victim impact meeting concerning petitioner and spoke at length in favor of his release, respondent's subsequent decision makes no mention of that statement and neither a transcript of the victim impact statement nor a report thereon appears in the administrative record. In fact, respondent affirmatively cited the negative impact of petitioner's actions upon the victim's families as one justification for denying him parole. Whereas here it is provided with a victim impact statement which advocates for the release of the prospective parolee, explicit reference to such an exceptional submission would facilitate intelligent appellate review." Bottom (id).

In the August 1, 2006 NYS parole hearing, again, the Waverly Jones, Jr., victim impact statement was ignored, even though Anthony Bottom raised the issue. The parole panel conducting the hearing refused to discuss the victim impact statement, only inquiring as to how Anthony Bottom received a copy of the Waverly Jones, Jr. victim impact statement. Discretionary release on parole was summarily denied, employing the same reasons for denial as had been applied in the two previous parole hearings of 2002 and 2004.

The NYS Appellant Division for the Third Department held the victim impact statement advocating for release must be seriously considered by the Parole Board or the decision will be reviewed by the Court. Unfortunately, as will be shown below, the Court will not review the Parole Board's failure to consider the positive victim impact statement.

Extraordinary Circumstances for Clemency/Commutation of Sentence

On or about April 4, 2007, Anthony Bottom was transferred from Auburn Correctional Facility pursuant to an extradition warrant to San Francisco charged in a felony complaint (not a Grand Jury indictment) with seven (7) other named defendants, for conspiracy and murder of a S.F. police officer on August 29, 1971. Consequently, because Mr. Bottom is not in NYS, the appeal of the August 1, 2006, parole denial has been deemed moot by the NYS Supreme Court of Albany County. Furthermore, according to Mr. Terrance X. Tracy, Counsel of NYS Division of Parole, future parole hearings will not be conducted until he is returned to NYS. While the S.F. felony complaint is based on a 36-year-old crime, the matter is not expected to proceed to trial for at least one year. Therefore, Anthony Bottom was not in NYS for the scheduled July 2008 parole hearing, and there are no arrangements to hold the hearing by teleconference. In effect, Mr. Bottom has otherwise been made ineligible for parole.

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