On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP No. 242-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 ...