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In re Civil Commitment of J.B.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 29, 2008

IN THE MATTER OF THE CIVIL COMMITMENT OF J.B. SVP-242-02

On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP No. 242-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2008

Before Judges Cuff and Baxter.

J.B. appeals from a February 15, 2008 order that continued his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA) N.J.S.A. 30:4-27.24 to-27.38. He was initially committed to the STU on April 11, 2002. His commitment has been previously reviewed and continued on July 10, 2002 and November 1, 2005. We reverse.

On appeal, J.B. raises the following claims: 1) the evidence presented by the State failed to establish by clear and convincing evidence that J.B. satisfies the standard for commitment as a sexually violent predator; 2) the judge erred when he qualified one of the State's witnesses as an expert despite the witness's lack of licensure as a psychologist; 3) the judge erred in accepting the diagnosis of paraphilia because J.B.'s history fails to satisfy the Diagnostic and Statistical Manual criteria for that diagnosis; and 4) the judge impermissibly accepted the testimony of a witness even though while the witness was testifying, the witness was being "prompt[ed]" by other members of the treatment team who were present in the courtroom and giving her hand signals that the lawyers were unable to see.

We focus on the fourth of those claims. After the witness in question had completed her testimony and during a "brief break" in the proceedings, the judge addressed the supervising psychiatrist, Dr. Friedman, who was present in the courtroom:

THE COURT: Please tell your--whoever they are back there, that when this lady is testifying up here, they shouldn't be sitting back there going like this.

DR. FRIEDMAN: Alright.

THE COURT: Because it's, you know, the lawyers can't see it, but I can see it.

And, in effect, they're prompting the witness. They shouldn't be doing it.

DR. FRIEDMAN: Absolutely.

At oral argument, counsel for J.B. maintained that because there was a break in the proceedings, she was not present in the courtroom when the judge notified Dr. Friedman about the coaching of the witness. She insisted that had she been present, she would have objected and asked the judge to disregard the witness's testimony. She asserted that not until she read the transcript in preparation for oral argument did she become aware of the judge's observation that treatment team members were either shaking their heads or giving the witness hand signals while she testified.

In his findings, the judge specifically stated that he "credit[ed] the two State's experts." The witness who the judge said was being "prompt[ed]" by the observers in the courtroom was one of the two. In fact, the judge relied in part on the testimony of the witness in question as a basis for rejecting the testimony offered by J.B.'s expert. Moreover, the judge's findings incorporated many of the opinions that were offered by the witness who was being coached. Because the judge relied on the testimony of the witness who was prompted in this fashion, we can have no confidence in the reliability of the outcome. It is impossible to determine whether the witness in question would have testified as she did had treatment team members not been "prompting" her as she testified.

When an individual's liberty is at stake, he is entitled to a fair hearing. In re Civil Commitment of E.D., 183 N.J. 536, 547-48 (2005). Because this witness's testimony may well have been the product, at least in part, of other people's opinions who were themselves not subject to cross-examination, we have serious doubts about the fairness of this proceeding. Accordingly, we reverse the order of February 15, 2008 and remand for further proceedings.

Reversed and remanded.

20080929

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