APPEARANCES V COUNSEL.) ^ ( ^ ) APPEARANCES OF COUNSEL.)
CHIEF JUSTICE RABNER: COUNSEL ARE YOU SITEED IN THE ORDER
YOU WANTED TO PRESENT I HAD A DIFFERENT ORDER I AM HAEN TO ACCOMMODATE YOU IF YOU
WANT TO IF MR. BRADLEY UP SEK MISS PORTER THIRD YOU TEM MOO E WHAT YOU WOULD
LIKE. CHIEF JUSTICE RABNER: VERY WELL MR. DUD DEE.
FLETCHER C. DUDDY: THANK YOU, YOUR HONOR.. GOOD AFTERNOON
YOUR HONOR MAY IT REPLIES THE COURT NJAA I RESO A KUNL MRINLS FOR REBUTTAL.
CHIEF JUSTICE RABNER: YES. FLETCHER C. DUDDY: THANK YOU VERY
MUCH. YOUR HONORS, THE ISSUE IN THIS CASE, AND THE ^ SHRUGS ^
SOLUTION TO THE ISSUE, IS FAIRLY STRAIGHTFORWARD AND UNCOMPLICATED. BUT
THAT'S ONLY UNDERSTOOD IF THE ISSUE IS PLACED WITHIN ITS PROPER CONTEXT AND
THE PROPER FRAMEWORK OF MEGAN'S LAW. AND THAT'S BECAUSE IT IS SOMETHING OF AN E
SOTERIC ISSUE, AN INSIDE BASEBALL MEGAN'S LAW ISSUE IF YOU WILL, ESPECIALLY
BECAUSE IT INVOLVES THE OVERLAY BETWEEN THE MEGAN'S LAW STATUTE AND THE ADTC SENTENCING
STATUTE. AND SO WHAT I SWO LIKE TO DO FOR MY REMAINING TIME IN MY PRELIMINARY
STATEMENT 4 MINUTES AND 30 SECOND, IS TO HELP FRAME THE ISSUE FOR OUR DISCUSSION.
AND SO WITH THAT, WE KNOW THAT HERE IN NEW JERSEY WE EVER A RISK BASED SYSTEM
OF PUBLIC NOIFGS FOR MEGAN'S LAW. THE COURT DESIGN BEING THAT THE LEVEL AND SCOPE
OF PUBLIC NOIFGS IS DESIGNED TO BE COMMENSURATE WITH ONE'S RISK POST
CONVICTION AT THE MEGAN'S LAW PROCEEDING. THIS DIFFERS FROM SOME OTHER STATES IN
WHICH IT IS NOT A RISK BASED SYSTEM IT IS A ONE SIZE FITS ALL APPROACH FOR
ALL OFFENDERS. THEY ARE ALL SUBJECT TO THE SAME BLANKET NOIFRTHS. WE HAVE A RISK
BASED SYSTEM WE DETERMINE RISK IN SHORT VERY SHORT, BY OUR TEARING SYSTEM
BY PLACING A REGISTRANT INTO ONE OF 3 RISK TEARS WHICH THEN DICTATES THE LEVEL
AND SCOPE OF PUBLIC NOIFGS. TIER ONE, LOWER RISK, INVOLVES ONLY NOIFGS TO
LOCAL LAW ENFORCEMENT, TIER TWO, MODERATE RISK, INVOLVES NOIFGS TO COMMUNITY GROUPS,
THIS COULD BE LOCAL ELEMENTARY SCHOOLS, CHURCH GROUPS, DAYCARE CENTERS,
REALLY ANY COMMUNITY SUPERVISION FOR LIFE GROUP THAT INDICATE ERS TO WOMEN AND
CHILDREN, GIRL SCOUT #2R5078S, YOUTH SPORTS LESION THINGS LIKE THAT AND
IT ALSO INVOLVES INTERNET PUBLICATION ON THE STATE POLICE INTERNET REGISTER TREE.
TIER 3, HIGH RISK, INVOLVES EVERYTHING THAT COMES WITH DWEER TWO, INCLUDING
THE INTERNET NOIFGS, PLUS DOOR TO DOOR NOIFGS WHEREBY A LAW ENFORCEMENT OFFICER
FROM THE COUNTY PROSECUTOR'S OFFICE GOES DOOR TO DOOR IN THE RETHS'
NEIGHBORHOOD AND SAYS THERE IS A MCDONALD MOTORS REGISTRANT LIVING DOWN 9 STREET
THIS IS WHAT HE OR SHE LOOKS LIKE SO ONLY AND SO FORTH THAT IS THE TIER PROCESS
AND THE TEARS OF COURSE ARE DETERMINED IN A POST CONVICTION RISK HEARING BY USE OF THE
REGISTRANT RISK ASSESSMENT SCALE A 13 FACTOR INSTRUMENT THAT DECIDES RISK
AND TIER. NOW, THIS IS ALL REFLECTED IN THE MEGAN'S LAW STATUTE
SPECIFIC WITH RESPECT TO PUBLIC NOIFRGS THAT'S 2 KRVMENT: 7- 8 IT IS FURTHER AMPLY
FUD THROUGH 0 A GOOD GUIDELINES AND OF COURSE IT IS ALL SDID? SOME OF THE
EARLY MEGAN'S LAW CASE LAW DOE AND THE MATTER OF C A IN THE MATTER OF G B THESE
CASES. THINGS CHANGED ZEROING IN ON THE ISSUE AT BAR, THINGS CHANGED IN 2013
WHEN THE LELTHS YOU ARE PASSED PUBLIC LAW CHAPTER 214 IN THE 2013 PUBLIC
LAWS AND WHAT IT ESSENTIALLY SAID THIS LAW, WAS THAT IF A REGISTRANT WAS FOUND
TO HAVE EXHIBITED REPETITIVE AND COMPULSIVE CONDUCT AT THE TIME OF
SENTENCING THE CRIMINAL SENTENCING, THEN THAT REGISTRANT WILL BE SUBJECT TO INTERNET
NOIFTHS POST CONVICTION, NOT WITHSTANDING THEIR TIER. SO WHAT THIS MEANT
AS A PRACTICAL MATTER WAS THAT ANY REGISTRANT WHO WAS FOUND TO HAFBL REPETITIVE
AND COMPULSIVE AT THE TIME OF SENTENCING AND WAS SENTENCED TO THE A DEE TEE C
RIGHT THEY WOULD BE SUBJECT TO INTERNET NOIFTHS EVEN IF THEY WERE TIER ONE
AND OTHERWISE NOT SUBJECT TO NOIFRGS OR IF THEY WERE TIER TWO AND SUBJECT TO INTERNET
EXEMPTION DECEMBER SPITE BEING TIER TWO WITH THE XEJ SHUNL THEY WOULD STILL
NONETHELESS GO ON PRESIDENT INTEREST IN ET THAT'S WHAT IN LAW DID.
THIS LAW IN 2014 COMMUNITY SUPERVISION FOR LIFE REVERB BRATED WITHIN OUR SMALL MEGAN'S
LAW YOOFRS WITH THE PUBLIC DEFENDER ERS' OFFICE AND THE 0 A G AND THE COUNTY
PROSECUTOR'S OFFICE AND IN THE ^ WHAT I CAN ^ WAKE OF THIS LAW THERE WAS DISCUSSION
S AND MEETINGS AMONG ALL THE STAKE HOLDERS, THE OFRMENT A G THE 0 PED THE
AOC EVERYONE WAS INVOLVED AND THE DISCUSSIONS SENT ERD AROUND HOW THIS SHOULD
BE ADMINISTERED, WHAT DO WE DO ABOUT THIS. THIS TEAMS TO BE A BIT SHEN SNET
CHAL TO OUR RIFSHG BASED SYSTEM HOW IS THAT GOING TO UNFOEL SHTHS WHAT IS THE PROS
SEES FOR THESE, WHAT COMMUNITY SUPERVISION FOR LIFE BUNL TO THE SURFACE
A NONG ALL OF THESE DISCUSSIONS AND THERE WAS LITIGATION IN OUR LAW DIVISIONS ABOUT
THIS, BUT WHAT COMMUNITY SUPERVISION FOR LIFE BUBLD TO THE SURFACE WAS LFRMENT
A VERSUS HOFFMAN AND THIS WAS A LAWSUIT THAT WAS FILED BY TWO PRO SE RETHS I MREEFR
THEY ARE OUT OF SOMERSET COUNTY, TWO PRO SE REGISTRANTS FILED IN THE DISTRICT
COURT OF NEW JERSEY IN THE NEWARK VICINAGE AND THEY ARGUED THAT THIS LAW AS IT
RELATED TO THEM WAS UNCONSTITUTIONALAL FOR SEVERAL REASONS. IT WAS A KITCHEN
SINK COMMUNITY SUPERVISION FOR LIFE A LAWSUIT FULL. THE DISTRICT COURT JUDGE,
JUDGE WOL OF SON, DENIED ALL OF THEIR CONSTITUTIONAL CLAIMS IN A MOTION TO
DISMISS FILED BY THE ATTORNEY GENERAL'S OFFICE BUT ONE, BUT ONE CLAIM, THAT BEING
THE PROCEDURAL DUE PROCESS CLAIM. JUDGE WOL OF SON IN A PUBLISHED OPINION
ALLOWED THAT CLAIM TO SURVIVE. SHE HELD THAT THE REGISTRANTS MADE A COLORABLE CLAIM
WITH RESPECT TO THIS BEING A VIOLATION OF THEIR FEDERAL, SUBSTANTIVE DUE PROCESS
RIGHTS. THE GIST THE OF JUDGE WOL OF SONS RATIONAL THERE WALLS THAT IT'S HARD
TO SQUARE THE EVIDENTIAL STANDARD AT SENTENCING WHEN WHEN A SENTENCING
JUDGE FINDS SOMEONE TO BE REPETITIVE AND COMPULSIVE THAT BEING THE POLICIES AND
PROCEDURES STANDARD WITH THE EFRGS STANDARD AT THE POST CONVICTION MEGAN'S LAW
HEARING WHICH HAS WE KNOW IS A CLEAR AND CONVINCING STANDARD TWO COMPLETE PLEA
DIFFERENT STANDARDS. AND SO THAT WAS MORE OR LESS THE RATIONAL THAT THE
DISTRICT COURT IDENTIFIED, HOW DO WE SQUARE THAT. SO SHE ALLOWED CASE TO CONTINUE.
SOON AFTER, I AM ALREADY DOM WITH MY FRAMEING, SOON AFTER THE CASE SETTLED,
THE CASE SETTLE JUDGE WOL OF SON APPOINTED PRO BONO DOWN TO THESE TWO PRO SE REGISTRANT
S OF THE LAWSUIT IT WAS THE GIBL ONLS FIRM WHO IS HERE TODAY AS A MIKE US
AND WITHIN MONTHS, SEVERAL MONTHS THE CASE SETTLE. AND THAT IS THE L A HOFFMAN
SETTLEMENT OFFER THAT IS PART OF THIS CASE. THAT SETTLEMENT
ORDER REALLY DID TWO THINGS THERE WAS TWO BASIC FEATURES TO THE ORDER. A.
THE FIRST WHICH IS REALLY NOT AT ISSUE HERE TODAY BASICALLY SAID THAT ANYONE
WHO WAS FOUND TO BE REPETITIVE AND COMPULSIVE AT SENTENCING BEFORE THE
EFFECTIVE DATE OF THIS ACT IN 2014 WILL BE IMMUNE TO IT. IN A SENSE, THE ATTORNEY
GENERAL'S OFFICE GREED NOT TO APPLY THIS RECEIPT TREDO EXPECT TIFLY TO ANYONE
SENTENCED BEFORE THE EFFECTIVE DATE OF THE ACT. AT THE TIME
THAT WAS ABOUT 650, 7 HUNDRED PEOPLE THROUGHOUT THE ENTIRE STATE OF NEW JERSEY
WHO WERE TIER ONE REGISTRANTS WHO WOULD HAVE BEEN SUBJECT TO THIS NEW LAW.
THAT WAS THE FIRST FEATURE OF THE LFRMTH A WHO HAVE MANL ORDER. THE SECOND FEATURE
WHICH IS THE ISSUE HERE TODAY, WAS THAT IN ALL PROSPECTIVE APPLICATIONS
SO ANYONE SENTENCED AFTER THE EFFECTIVE DATE IN 2014, FOR THOSE REGISTRANTS, THE
STATE OF NEW JERSEY THE COUNTY PROSECUTORS WOULD HAVE TO BEAR THE BURDEN
OF PERSUASION AT THE POST CONVICTION MEGAN'S LAW HEARING TO PROVE THAT THE UNDER
LIEGS CONDUCT WAS NOT JUST REPETITIVE AND COMPULSIVE BY A POLICIES AND
PROCEDURES OF THE EVIDENCE STANDARD IN OTHER LIKELY TRUE THAN NOT, BUT ACTUALLY
REPETITIVE AND COMPULSIVE BY CLEAR AND CONVINCING EVIDENCE WHICH OF COURSE IS THE
STANDARD AT A MEGAN'S LAW HEARING. CHIEF JUSTICE RABNER:
MR. DUDLY WE HAVE SOME FAMILIARITY WITH THAT. CAN YOU HELP US BY DRAEG WHAT
YOU BELIEVE THE APPROPRIATE FRAMEWORK IS AT THE TIER HEARING AND SPECIFY WHAT IS
WITHIN THE JUDGES' DISCRETION AND WHAT IS MANDATORY. FLETCHER C.
DUDDY: I CAN, YOUR HONOR. I THINK THAT THE KEY, THE KEY TO THE ^
SHRUGS ^ SOLUTION HERE IS ACTUALLY THIS COURT'S OUTLINE FOR MEGAN'S LAW PROCEDURES
AT A TIER HEARING WHICH WAS SIGNED INTO EFFECT BY VIRTUE OF COURT ORDER FROM
THERE COURT IN 2009. THIS IS IN THE RECORD HERE IT IS DISCUSSED IN THE BRIEFS
PARTICULARLY IT IS AT RFRMENT S A 28 TO 33. AND WHY I SAY THIS IS THE KEY TO
THIS IS THIS: THIS COURT THROUGH THE GUIDELINES HAS MANDATED THAT TIER
HEARINGS, THE TEARING PROCESS WHATEVER YOU WANT TO CALL IT, IS A TWO STEP PROCESS,
IT IS A TWO STEP PROCESS. STEP ONE IS AN IN CAMERA CONFERENCE. THIS IN
CAMERA CONFERENCE IS REALLY THE FIRST TIME WHERE ALL THE PARTIES COME TOGETHER
IN THE LAW DIVISION THE REGISTRANT HIS OR HER ATTORNEY JUDGE, PROSECUTOR,
AND THEY TALK ABOUT THE FLISHS THAT NEED TO BE LITIGATED THEY TALK ABOUT WHAT THE
REGISTRANT'S OBJECTIONS MAYBE THEY TALK ABOUT WHETHER THERE IS ANY POSSIBILITY
FOR SETTLEMENT, THEY TALK ABOUT WHETHER ALL THE ISSUES BEEN CAN JUST BE RESOLVED
HERE AND NOW AND OFRN TIMES THEY ARE AT THIS INITIAL CONFERENCE, THEY TALK
ABOUT WHETHER THERE IS A NEED FOR EXPERTS, AND WHAT THAT'S GOING TO LOOK LIKE WHETHER
IT JUST EXPERT CERTIFICATIONS AND REPORTS OR WHETHER IT'S LIFE TESTIMONY,
THIS IS WHAT'S DONE AT THE IN PERSON CONFERENCE OR THE IN CAMERA CONFERENCE, STEP
ONE. THEN, IF THERE ARE ANY ISSUES THAT NEED TO BE LITIGATED,
THEN WE PROCEED TO STEP TWO, WHICH IS THE IN CAMERA HEARING. THIS IS THE TWO STEN
PROCESS THIS COURT HAS MANDATED THROUGH COURT ORDER. WHY I SAY THAT IS
THE KEY TO THIS ^ SHRUGS ^ SOLUTION THE FRAMEWORK MOVING FORTD IS THAT WITH REFERENCE
TO WHAT HAPPENED HERE, THE TRANSCRIPT IN THIS CASE AUGUST 4TH, 2022, THAT IN
EFFECT WAS AND SHOULD HAVE BEEN TREATED AS THE IN CAMERA CONFERENCE. THIS IS IN
CAMDEN COUNTY I ALL THE PARTIES CAME TOGETHER AND THE TRIAL ATTORNEY FOR
THE REGISTRANT IDENTIFIED THIS R AND C RE PEACE TIF AND COMPULSIVE ISSUE AS BEING
PART OF THIS CASE. AND HE TLM DID SO IN WRITING IN ADVANCE OF THE HEARING EVEN
THOUGH THERE IS NO OBLIGATION THO DO SO UNDER THE GUIDELINES BUT A KUNL
DAYS BEFORE THE HAERLG HE WRITES A LETTER AND THERE IS IN THE RECORD, AND THE LETTER
BASICALLY SAYS: JUDGE I WILL BE REPRESENTING REGISTRANT R S AT THE IN
CAMERA CONFERENCE CONGRESS UP, WE PLAN ON LOJING AN OBJECTION TO ONE OF THE FACTORS
ON THE 13 FACTOR SCALE, THAT BEING FACTOR 2-DEGREE OF FORCE, BUT WE WOULD
ALSO LIKE TO BRING IN OUR OWN EXPERT TO SPEAK TO R.S.'S REPETITIVE AND COMPULSIVENESS
AT THE TIME OF SENTENCING IF THE PROSECUTOR WISHES TO PURSUE THAT
FINDING FOR INTERNET PUBLICATION. THE LETTER EVEN EXPOUNDED UPON WHY THIS WAS
APPROPRIATE. IT EXPLAINED THAT WE THINK THAT R.S. MAY NOT HAFSHL REPETITIVE
AND COMPULSIVE BY CLEAR AND CONVINCING EVIDENCE BECAUSE OF HOW QUICKLY HE WAS
RELEASED FROM THE A D TFRMENT C WHICH IS KIEFR UNUSUAL HOW QUICKLY REPROCEEDED
WITH THERAPY POST CONVICTION, HIS LOW RISK SCORES ON ACTUARIAL INSTRUMENTS, THE
ATTORNEY BASICALLY SAYS IN WRITING IN LIGHT OF ALL THAT, WE SERIOUSLY
QUESTION WHETHER HIS UNDERLYING CONDUCT COULD HAVE BEEN THE PRODUCT OF COMPULSION
AS OPPOSED TO SOMETHING ELSE, LIKE THANK YOU, YOUR HONOR. NIS SM OR HEDONISM OR
SOMETHING LIKE THAT RIGHT? SO HE SENDS THIS LETTER, HE GOES TO THE IN CAMERA
CONFERENCE, HE RAISES THIS ISSUE AGAIN, THIS I ALSO THE TIME THAT ALL OF THESE
ISSUES SHOULD HAVE BEEN DISCUSSED. AND THIS WOULD HAVE BEEN DISCUSSED WITHIN
THE FRAMEWORK THAT'S BEEN IN EXISTENCE SINCE 2009. THAT OF COURSE DIDN'T HAPPEN.
THE JUDGE ESSENTIALLY FOUND BASED ON THE PROMPTING OF THE COUNTY PROSECUTOR
THAT THE R.S.S CONDUCT WAS REPETITIVE AND COMPULSIVE BY CLEAR AND CONVINCING EFFORT
AS OPPOSED TO JUST PNEUMONIA IT DID SO RIGHT THERE AND THEN AT THE IN CAMERA
CONFERENCE WITHOUT ALLOWING THIS TO CONTINUE TO THE SECOND PHASE OF THE CASE, WHICH
WOULD HAVE ALLOWED THE REGISTRANT'S ATTORNEY TO INTRODUCE HIS OWN PROOFS,
EXPERT OR OTHERWISE, PERHAPS CROSS-EXAMINE THE STATE'S DOCTOR OR EVEN LOJ AN ARGUMENT
FACIAL ATTACK ON THE STATES PROOFS. SO ALL OF THAT WAS DECIDED AT THE IN
CAMERA CONFERENCE AND IT SHOULD NOT HAVEN. WHAT SHOULD HAVE HAPPENED HERE, WHICH
DOES HAPPEN IN MOST OF THESE CASES, THIS WAS ALMOST THE A NOMLY, WHAT SHOULD HAVE
HAPPENED IS ALL PARTIES DISCUSS THE ISSUES AS THE TRIAL ATTORNEY BROUGHT
UP, THE JUDGE SHOULD HAVE THEN SAID OKAY, WE KNOW YOU ARE GOING TO LOJ AN OBJECTION
TO THIS YOU ARE GOING TO INTEREST DULS YOUR OWN PROOFS, I DON'T THINK THERE
WAS A SPECIFIC REQUEST IN THIS CASE TO CROSS-EXAMINE THE STATE'S DOCTOR BUT THERE
ARE IN MANY CASES, BUT THIS REROBUST DISCUSSION SHOULD HAFBLG HAD IN CAMERA
AND THEN SHE SHOULD HAVE SET A DATE FOR THE SEK PHASE OF THE CASE THE IN CAMERA
HEARING. AND THERE SPIFSHG TIME TABLGS SETS UP BY THIS COURT IN THE
GUIDELINES. AND ESSENTIALLY WHAT THEY SAY IS THAT THE HEARING, STEP TWO, SHOULD
TAKE PLACE 45 DAYS AFTER THE IN CAMERA CONFERENCE. SO THERE WOULD HAVE BEEN MORE
THAN ENOUGH TIME TO ACCOMMODATE THE OBJECTIONS THAT THE TRIAL ATTORNEY
HERE WAS TRYING TO LOJ AND INTRODUCE HIS PROOFS AND EVEN CROSS-EXAMINE THE EXPERT.
BUT NONE OF THAT WAS HAPPENING HERE. SO TO ANSWER YOUR QUESTION SPIFRL,
YOUR HONOR, THE ^ SHRUGS ^ SOLUTION TO THIS IS JUST LOOKING AT THIS CASE AS AN
XM PAROLE INELIGIBILITY WHAT HAPPENED HERE, UNDER THE FRAMEWORK ALREADY SET OUT
BY THIS COURT IN 2009. THERE IS THERE ISN'T TOO MUCH DAYLIGHT FRANKLY
BETWEEN THIS FRAMEWORK THAT I'M ARTICULATING NOW WHICH AGAIN IS ALREADY THE
FRAMEWORK THAT YOUR HONOR HALLS PUT FORTH IN 2009 NOT MUCH DAYLIGHT BETWEEN
THERE AND THAT OF THE CANAL DEN COUNTY PROSECUTOR SO FAR AS I COULD TELL AND THE
OFFICE OF THE ATTORNEY GENERAL KAM 2020 COUNTY PROSECUTOR BLEEFRTD THAT
A REGISTRANT WHO WISHES TO CHALLENGE THE STATE'S CASE REGISTRANT WISH GOES TO
ARGIROPOULOS THAT HIS CONDUCT WAS NOT REPETITIVE AND COMPULSIVE BY CLEAR AND
CONVINCING EVIDENCE MAY OF COURSE MAKE A FACIAL ATTACK ON THE STATE'S PROOFS, THEY
MAY INTEREST AMBIGUOUS THEIR OWN PROOFS, EXPERT OR OTHERWISE, AND THEY MAY EVEN
CROSS-EXAMINE THE STATE'S DOCTOR. WHERE THE DIFFERENCE IS, WHERE THERE IS SOME
SLIGHT VARIANCE IS THE PROSECUTOR IS ESSENTIALLY ARGIROPOULOSING THAT
EVERYTHING THE TRIAL ATTORNEY WANTED TO DO HERE FOR R.S. WASN'T RELEVANT TO THESE
ISSUES. AND THAT'S INCORRECT. THE TRIAL ATTORNEY CLEARLY AND COMPANY GENERALLY
IN WRITING AND THEN AT THE IN CAMERA CONFERENCE ON AUGUST 4TH EXPLAINED WHY AN
EXPERT REPORT FROM HIM WOULD HAVE BEEN RELEVANT TO THE BACKWARD LOOKING
DETERMINATION AS TO WHETHER OR NOT HIS CLIENTS WAS REPETITIVE AND COMPULSIVE BY
CLEAR AND CONVINCING EVIDENCE. SO, AGAIN, SAME FRAMEWORK,
SLIGHT VARIATION. AND I WOULD LGS ADD THAT IN THE IN CAMERA CONFERENCE
IN TERMS OF A PROVE OR A THRESHOLD SHOWING I KNOW THIS IS KIEFR DEBATED IN THE
BRIEFS, REALLY FOR THE PAST 30 YEARS THIS COURT HAS COMMUNITY SUPERVISION FOR
LIFE ARTICULATED WHAT THAT STANDARD IS, WHICH IS REALLY RELEVANCY, AND WHETHER IT
WOULD ASSIST THE ULTIMATE DETERMINATION OF WHATEVER THE ISSUE MAYBE.
CHIEF JUSTICE RABNER: SUPPOSEING IN THIS CASE RATHER THAN THE REGISTRANT WANTED
TO CALL HIS OWN WITNESS, SAID TO THE JUDGE IOWA THAN THE TO CROSS-EXAMINE
LIFE TESTIMONY FROM THE STATE'S EXPERT. WHAT SHOULD HAVE HAPPENED AT THAT POINT.
FLETCHER C. DUDDY: RIGHT. SO I THINK IT WOULD HAVE BEEN FAIR
FOR THE JUDGE TO PERHAPS QUESTION THE ATTORNEY WHY THEY WANTED TO DO THAT, RIGHT?
BUT I DON'T THINK IT'S NECESSARY FOR THAT ATTORNEY TO COME TO COURT AT THE
IN CAMERA CONFERENCE AND MAKE A FORMAL PROVE AND EXPLAIN WITH SPECIFICITY EXACTLY
WHY THEY WANT TO CROSS-EXAMINE THE STATE'S DOCTOR. BUT IT WOULD BE FAIR
FOR THE JUDGE TO MAYBE ASK THEM THAT IN THIS IN CAMERA CONFERENCE AND BASED ON
THE ANSWERS THAT WERE GIVEN THEN ALLOW THAT TO HAPPEN. AND THIS IS -- CHIEF
JUSTICE RABNER INNER YOU ARE PRESSING UPON WHAT'S PROBABLY THE MOST DIFFICULT
ISSUE IN THIS ENTIRE CASE, WHICH IS THE RIGHT TO CROSS-EXAMINATION. AND WHY IT IS
SOMEWHAT DIFFICULT IS THAT OF COURSE WE KNOW THAT HEARSAY IT IS PERSONALED
AT A MEGAN'S LAW HEARING AND HERE WE ARE TALKING ABOUT NON HEARSAY LIEFR TESTIMONY.
BUT THERE ARE SEVERAL REASONS WHY THE NORM SHOULD PROBABLY BE LIFE TESTIMONY
IF REQUESTED BY THE REGISTRANT' COUNSEL IN THIS CASE. AND ONE OF THEM IS THAT
THIS IS A VERY UNIQUE ISSUE IN THE MEGAN'S LAW WORLD COMPARED TO ANYTHING ELSE
THAT IS REALLY LITIGATED HERE. THE LINES SHARE OF ISSUES THAT ARE LITIGATED
RELATE TO THE FACTORS ON THE ARE ARE AS RIGHT AND SO EVERYONE KONLS TOGETHER AT
THE IN CAMERA CONFERENCE AND THEN PERHAPS PROCEED TO THE SECOND PHASE OF THE
CASE, AND WHAT THEY'RE ARGIROPOULOSING IS WHETHER OR NOT THERE IS CLEAR AND CONVINCING
EVIDENCE OF THE VICTIM'S AGE, OR WHETHER OR NOT THERE IS CLEAR AND CONVINCING
EVIDENCE OF PENETRATION BEING USED IN THE CRIME, ALL OF THAT CAN WELL BE DETERMINED
BASED ON THE DOCUMENTARY EFFORT WE DON'T NEED TO CALL IN THE WITNESS AND
HAVE HER TESTIFY P HER RECOLLECTION AT THE TIME OF THE AGE. THIS IS DIFFERENT
THOUGH. THIS IS DIFFERENT. THE SOLE ISSUE TO BE LITIGATED HERE IS AT
BOTTOM THE STATE'S EXPERT. IT'S THE STATE'S EXPERT WHO IS MAKING A SUBJECTIVE,
CLINICAL DIAGNOSIS. THIS IS DIFFERENT THAN ALMOST ANY OTHER ISSUE THAT IS LITIGATED
IN MEGAN'S LAW. AND BECAUSE OF HOW UNIQUE THAT IS, I THINK IT NORM SHOULD BE
CROSS-EXAMINATION IF REQUESTED. AND AGAIN, AT THE IN CAMERA CONFERENCE IF THE
JUDGE WANTS TO PRESS ON THAT A LITTLE BIT AND ASK WHAT YOU'RE GOING TO EXPLORE
OR WHY THAT IS, THERE COULD BE SOME COLLOQUY BUT I THINK IT GENERAL NORM SHOULD
BE CROSS-EXAMINATION. THERE IS OTHER REASONS TOO AS WELL AND SO WE KNOW
THAT IN STATE VERSUS HORN AND STATE VERSUS HOWARD AND THESE ARE THE CASES THAT
DETERMINE WHAT PROCESS IS DUE AT THE SENTENCING COURT WHEN A DEFENDANT
WANTS TO LOJ AN OBJECTION TO THE REPETITIVE AND COMPULSIVE FINDING THERE. WE KNOW
THAT IN HORN ALL IT REALLY TAKES IS THE DEFENDANT TO SAY: I'M CHALLENGEING
THE REPORT AND I WOULD LIKE TO CROSS-EXAMINE THE STATE'S DOCTOR, THE STATE'S
WITNESS, I WOULD LIKE TO INTEREST DUTS MY OWN EXPERT PROOFS, AND OTHERWISE
CHALLENGE THE STATE'S CASE. THERE IS NO PROVE REQUIRED OR ANYTHING A DEFENDANT
MAY SIMPLY TO THAT, RIGHT? AND SO WHY THAT'S IMPORTANT IS THAT DEFENDANTS
ARE PERMITTED TO DO THAT THERE AT SENTENCING DECEMBER SPITE THE LIBERTY INTERESTS
AT THE TIME OF SENTENCING BEING LESS THAN WHAT THEY ARE HERE IN THE POST
CONVICTION PHASE OF THE CASE. THE LIBERTY INTEREST AT SENTENCING IS MERELY WHERE
THE DEFENDANT'S GOING TO BE DETAINED AT THE ADTC OR IN STATE PRISON. AND
THE COURT, THIS COURT IN HORN AND HOWARD SAID UNION COUNTY WHAT? THOSE LIBERTY
INTERESTS THERE MAYBE A STIGMA ATTACHED TO GOING TO THE ADTC AN SZ OPPOSED TO
STATE FRATERNAL ORDER OF POLICE ONLY BUT IN AN IS PRETTY WE CAN THAT IS ACTUALLY
THE LANGUAGE THAT THE COURT USES IN HOWARD IT'S WE CAN BUT NEVERTHELESS HOWEVER
WEAK THAT MAYBE THAT INTEREST, WE'RE KWOEG TO ALLOW YOU TO CROSS-EXAMINE THE DOCTOR
AND SUBMIT YOUR OWN PROOFRTS AND SO ON AND SO FORTH FRM AND SO IF THAT IS
THE CASE IN HORN BELOW UNDER THOSE LESSER INTERESTS, AND UNDER A LOWER STANDARD,
POLICIES AND PROCEDURES STANDARD, WELL THEN THE SAME SHOULD HOLD TRUE HERE IN
THE MEGAN'S LAW SENSE WHEN WE'RE TALKING ABOUT MORE SIGNIFICANT LIBERTY
INTERESTS, RIGHT. JUSTICE WAINER APTER: DOESN'T THAT ^ IGNORE
THE ^ IGNORE IT CONSTITUTIONAL AMENDMENT WHERE EFFECTIVE DECEMBER 7TH, 2000, ARTICLE 4,
SECTION 7, PARAGRAPH 12, WAS ADDED TO THE NUMBER CONSTITUTION BASICALLY
SAYING THERE IS NO PROCEDURAL DUE PROCESS LIBERTY INTEREST IN KEEPING YOUR INFORMATION
OUT OF THE PUBLIC FOR PURPOSES OF MEGAN'S LAW? THE AMENDMENT SPECIFICALLY
SAYS NOT WITHSTANDING ANY OTHER PROVISION OF THIS CONSTITUTION AND IRP RESPECT
I AM OF ANY RIGHT OR INTEREST IN MAINTAINING CONFIDENTIALITY IT SHUSH BE
LAWFUL FOR THE LEGISLATURE TO AUTHORIZE BY LAW THE DISCLOSURE TO THE GENERAL PUBLIC
OF INFORMATION PERTAINING AND THEN IT GOES THROUGH VERY SPECIFIC INFORMATION
ABOUT SOMEONE FOUND TO HAVE COMMITTED A SEX OFFENSE THE SCOPE MANNER AND FORMAT
OF THE DISCLOSURE OF SUCH INFORMATION SHALL BE DETERMINED BY OR PURNT TO THE
TERMS OF THE LAW AUTHORIZING THE DISCLOSURE. SO I UNDERSTOOD THAT AMENDMENT IN
2000 TO HOLD THAT THERE IS NO STATE CONSTITUTIONAL PROCEDURAL DUE PROCESS
INTEREST IN NOT HAVING YOUR INFORMATION AS A COMMITTED A PERSON FOUND TO
HAVE COMMITTED A SEX OFFENSE NOT HAVING YOUR INFORMATION MADE AVAILABLE TO THE
GENERAL PUBLIC. FLETCHER C. DUDDY: RIGHT. SO AN EXCELLENT
QUESTION YOUR HONOR. WHAT I WOULD SAY IS THAT THE LFRMENT A V WHOEVER MAN OPINION
AND THEN THE SETTLEMENT THAT CAME ABOUT BY WAY OF THAT, THAT WAS PREDICATED
ON THE FEDERAL CONSTITUTION. THIS WAS ALL PREDICATED BACK TO THE THIRD SISHTHS'
RECOGNITION OF A LIBERTY INTEREST THAT REGISTRANTS HAVE.
FLETCHER C. DUDDY: JUSTICE WAINER APTER: UNDERSTOOD BUT THE
THIRD SISHTHS POIRGS LGS PLEA DATES THE UNITED STATES SPROERT KOURT FINN IN ^ CON ^
CONNECTICUT DENT OF PUBLIC SAFETY VERSUS DOE, 538 U.S. ONE, 2003, WHERE I
BELIEVE THAT THE U.S. SUPREME COURT HELD THAT THE ^ CON ^ CONNECTICUT SEX OFFENDER
RENLS TREE STAUTD WHICH POSTED SEX OFFENDER INFORMATION ON THE INTERNET
BASED SOLELY UPON AN OFFENDERS' CONVICTION DID NOT VIOLATE ANY PROCEDURAL DUE PROCESS
RIGHT BECAUSE THERE WAS NO PROCEDURAL DUE PROCESS REQUIREMENT THAT IN ORDER TO
POSE THE SECTION FENDER INFORMATION THE STATE MUST PROVIDER ANY HEARING BEYOND
THE ORIGINAL CONVICTION OR ESTABLISH THAT THE OFFENDER IS CURRENTLY DANGEROUS.
FLETCHER C. DUDDY: RIGHT. SO THERE WAS A CASE, LFRMENT
A ^ REMEMBERING ^ WRECK SIELS THIS RIGHT THE LFRMENT A OPINIONS ^ REMEMBERING ^ WRECK
SIELS THIS. JUSTICE WAINER APTER: IT DOESN'T AS FAR AS
I -- I AGREE WITH YOU THAT IT SAYS THAT IT IS RECOGNIZING -- RECONCILING THE
FACT THAT THERE IS NO STATE CONSTITUTIONAL RIGHT BY SAYING THIS IS ALL PREDICATED
ON A FEDERAL KONLTS 58 RIGHT BUT IT DOESN'T DISCUSS THIS ^ CON ^ CONNECTICUT DEPARTMENT
OF PUBLIC SAFETY VERSUS DOE CASE WHICH BASICALLY SAYS THERE IS NO FEDERAL
CONSTITUTIONAL RIGHT IT JUST SEEMS TO IGNORE THAT CASE. FLETCHER C.
DUDDY: RIGHT. SO I'M NOT I'M OF COURSE NOT DISCOUNTING YOUR RIDING OF THEEGS
CASES AND SIN THAT THINKS OF THEM, YOUR HONOR. A. YOU HAVE A DIFFERENT
READING OF THE ^ CON ^ CONNECTICUT VERSUS DOE CASE. JUSTICE WAINER
APTER: WAYNE. FLETCHER C. DUDDY: SO THE FEDERAL WHAT I WOULD
SAY THOUGH IS THIS. ONE ANSWER I WILL SAY IS THAT JUDGE WOL OF SON IN LFRMENT
A V HOFFMAN SHE SHE SIMPLY SAID THAT THE CASE MAY PROCEED, RIGHT, THAT THE
REGISTRANT HAVE RAISED A COLORABLE CLAIM UNDER THE FEDERAL DUE PROCESS PROTECTIONS,
RIGHT? HAD THE STATE NOT SOELT THE THE CASE NECESSITY MAY WELL HAVE KIEFR
PRESSED ON THE BUTTONS THAT YOU ARE GETTING TO NOW AS THE LITIGATION UNFOLDED.
THEY DIDN'T THOUGH. THEY SETD LD 89-CASE. JUSTICE WAINER APTER:
I UNDERSTAND IT JUST SEEMS LIKE YOU WERE MAKING AN ARGIROPOULOS I UNDERSTAND
WITH WHY THE STATE IS BOUND BY THE SETTLEMENT AGREEMENT THAT THEY CHOSE TO SIGN
EVEN IF THERE WAS NO PROCEDURAL DUE PROCESS REASON FOR SIGNING IT UNDER
THE FEDERAL CONSTITUTION, IT SEEMED LIKE THOUGH THAT I WERE PRESSING THAT BEYOND
THE SETTLEMENT THERE ARE THESE ADDITIONAL PROCEDURAL DUE PROCESS PROTECTIONS
THAT HAVE TO COME INTO PLACE AND THAT'S WHERE I WAS CONFUSED BECAUSE IT SEEMS LIKE
THERE ARE NONE UNDER THE STATE CONSTITUTION OR THE FEDERAL
CONSTITUTION ALL WE REALLY HAVE IS THE SETTLEMENT WHERE THE STATE SAYS WE AGREE
TO DO THIS ANYWAY. FLETCHER C. DUDDY: RIGHT. SO I -- JUST
BECAUSE THE STATE'S INTEREST ON BALANCE OUTWEIGH THOSE OF THE REGISTRANT'S DOESN'T
NECESSARILY MEAN THEY DON'T HAVE A LIBERTY INTEREST IN THIS. THAT'S WHAT LFRMENT
A SAYS THAT'S WHAT AFRMENT A SAYS IN THE THIRTD CIRCUMSTANCE. I UNDERSTAND
THAT YOUR HONOR IS SAYING THE SUPREME COURT HAS COMMUNITY SUPERVISION FOR LIFE
IN SUBMIT VERSUS DOE HAS SAID THAT THEY DISAGREE OR THERE IS A DIFFERENT
ANALYSIS, BUT JUST BECAUSE THE STATE'S INTEREST OUTWEIGHS IT DOESN'T NECESSARILY
MEAN THEY DON'T HAVE AN INTEREST. AND WHAT I'M SAYING THOUGH, I'M ALSO
NOT TO GET TO THE HEART OF YOUR QUESTION, I'M UNSOLICITED EMAILS REALLY I'M NOT
NECESSARILY SAYING THAT REGISTRANTS ARE ENTITLED TO THEELS EXTRA PROCEDURAL
PROTECTIONS BECAUSE OF HOW FUNLAL THEIR LIBLT INTEREST IS IN THEIR PRIEFRSLY AND
REPUTATION I AM SIMPLY SAYING THEY ARE ENTITLED TO ALL OF THESE REPUTATION
S BECAUSE THAT IS MARSHALL TO MEGAN'S LAW THIS IS MEGAN'S LAW ONE OF ONE. THE IDEA
THAT A REGISTRANT CAN CHALLENGE THE STATE'S PROOFS ON ANY ISSUE HAS BEEN
PART OF MEGAN'S LAW FOR 30 YEARS. THE IDEA THAT A REGISTRANT.
JUSTICE WAINER APTER: MEGAN'S LAW DOESN'T SPECIFY THAT THERE HAS TO BE THIS SEPARATE
HEARING AFTER THE PERSON IS CONVICTED AND SENTENCED WHERE IT HAS TO BE
RELITIGATED BY CLEAR AND CONVINCING EVIDENCE AND WHERE THE PERSON IS ENTITLED TO
ALL THESE DIFFICULT ASIAN ALLEGE PROCEDURAL INLTS MEGAN'S LAW SEEMS TO AT
THIS POINT SAY THE OPPOSITE IN THAT THE AMENDMENT FROM 2014 THAT YOU READ
BEFORE SPECIFICALLY SAYS QUOTE WHOSE RIFRNG OF REOFFENSE IS NOD RATD OR LOW AND WHOSE
CONDUCT WAS FOUND TO BE CHARACTERIZED BY A PATTERN EVER REPEL TILL COMPULSION
I HAVE BEHAVIOR PURNT TO THE PROFRLGSS OF 47- 3. SO IT SEEMS LIKE MEGAN'S LAW
IS SAYING AS LONG AS YOU WERE SENTENCED TO THE ADTC UNDER 473, YOU ARE
AUTOMATICALLY CHARACTERIZED BY THIS PATTERN OF REPELS I HAVE COMPULSION I HAVE WAIVER
BEHAVIOR IT DOESN'T SAY ANYTHING ABOUT THAT HAVING TOBLG RELITIGATED LATER
AFTER THE SENTENCING THAT IS ALL PURNT ONLY TO THE 2017 SETTLEMENT AGREEMENT.
FLETCHER C. DUDDY: THAT'S RIGHT. THE STATUTE THAT IS EXACTLY
RIGHT. THE STATUTE SIMPLY TRACKS THE STATUTE SIMPLY ASKS WHETHER THERE WAS A
PREVIOUS FIENTDZING. IT DOESN'T ASK WHETHER THE UNDERLYING CONDUCT WAS
CLEARLY AND CONVINCINGLY REPETITIVE AND XULS I HAVE IT JUSZ ASKS ABOUT THE
FINDING. YOU'RE RIGHT. BUT THE SETTLEMENT DOES MORE THAN THAT. THE SETTLEMENT
REFLECTS THE ANALYSIS OF JUDGE WOL OF SON WHICH FOR THE REASONS YOU ARE POINTING
OUT MAY NOT HAVE BEEN CORRECT IN THE END HAD IT BEEN LITIGATED BUT THE
SETTLEMENT PROVIDES FOR A HEARING IN THE SAME VEIN IDENTICALLY REALLY, TO ALL OTHER
MEGAN'S LAW HEARINGS, WHICH IS THE TWO STEP BIFURCATED PROCESS, THE IN CAMERA
PROCEEDING THEN THE SEK IN CAMERA HEARING. AND THIS IS UNION
COUNTY, THE TERMS THAT ARE BEING USED NAULG THESE BRIEFS EVEN BY THE PEFRS' FRS
IS REALLY SOMETHING OF A MISS KNOWNER WOO E SALG THAT WE ARE ENTITLED TO AN EVIDENTIARY
HEARING OR A FACT FINDING HEARING, OR IF YOU LOOK AT ALL THE CASE LAW IT
REFERS TO IT AS AN AN INVESTIGATORY HEARING. ALL WE ARE REALLY SAYING IS THAT
THIS CASE, AND THIS ISSUE MOVING FORWARD, THE FRAMEWORK SHOULD HAVE PROCEEDED
TO JUST STEP TWO OF THE BIFURCATED PROCESS WHICH IS THE IN CAMERA HEARING.
GETTING BACK TO SOME OF THE OTHER REASONS THAT CROSS-EXAMINATION IS MORE
APPROPRIATE IN THESE CASES THAN IN OTHER CASES. WE ALSO OF COURSE HAVE A GOOD
EXAM PEOPLE OF THIS IS THE HEARTLAND APPLICATIONS THAT REGISTRANTS ARE ENTITLE
TO MAKE THIS IS UNDER THE G B CASE WHICH ESSENTIALLY SAYS THAT REGISTRANTS ARE
ABLE FO LOJ TWO BASIC OSHGS TS TO THE PROSECUTORS CASE. THE FIRST BEING
THEY CAN ATTACK THE SCALE SCORES, RIGHT, THERE IS NO CLEAR AND CONVINCING EVIDENCE
FOR FACTOR TWO FOR THE AGE OF THE VICTIM RIGHT, THE OTHER ONE IS THAT THEY CAN
INTRODUCE THROUGH EXPERT PROOFS AN ARGUMENT THAT THE SCALE DOESN'T TRULY EVEN
CANS LATE THEIR RISK MOVING FORTD AND THIS IS THROUGH EXPERT PROOVRS AND
THIS IS DONE ALL TIME. AND THERE IS KNEE FORMAL PROVE NEEDED OR ANYTHING LIKE
THAT, THE REGISTRANT SIMPLY SAYS UNION COUNTY WE ARE GOING TO INTRODUCE
AN EXPERT REPORT, WE BELIEVE THAT THE SCORE DOES. A. IN KALGS LATE THAT
RISK MRASH THERE I ALSO SOME MINIMAL KWOL KWEE DURING THE IN CAMERA PROCEEDING,
AND THEN IT IS SUBMITTED. AND WHEN THOSE EXPERT REPORTS ARE SUBMITTED,
WHENEVER THE STATE WANTS TO CROSS-EXAMINE THE REGISTRANTS EXPERT THEY SIMPLY DO
SO. AND THEY DO SO FOR THE SAME REASON THAT WE ARE ARTICULATING HERE WHICH IS
THAT IT'S AN UNUSUAL ISSUE, IT'S THE CLINICAL DIAGNOSIS BEING MADE THAT SHOULD BE
SUBJECT TO CROSS-EXAMINATION. GETTING BACK TO THE SLIGHT VARIANCE
BETWEEN THE 0 PEE DID POSITION AND FRAMEWORK MOVING FORWARD AND THAT OF
THE PROSECUTORS IN OFRMENT A G SO AGAIN PROSECUTOR SAYS, THE LITMUS TEST MUST BE
RELEVANCY WHICH WE AGREE WITH AND WE THINK THAT THAT WAS MET HERE CLEARLY
AT THE IN CAMERA CONFERENCE AND WITH THE LETTER SUBMITTED BEFOREHAND. THE O A
G AND THIS IS A CRUCIAL POINT THAT NEEDS TO BE NAD BECAUSE IT GOES WELL BEYOND
THIS CASE, IS THE ATTORNEY JENS OFRTS IS HARKENING BACK TO THE PRE1997 BURDEN
SHIFTING PARA DIME OF MEGAN'S LAW IN WHICH THE STATE BEARS THE INITIAL BURDEN MOVING
FORWARD TO PROVE THEIR CASE, TO PROVE THEIR PRIMA FACIE CASE AND THEN THE
BURDEN SHIFTS TO THE REGISTRANT AND STAYS WITH THE REGISTRANT TO COMMUNITY SUPERVISION
FOR LIFE PROVE OTHERWISE. AND SO IT WOULD ASK THE REGISTRANT TO SUBMIT EVIDENCE
THEIR OWN EVIDENCE TO CALL INTO QUESTIONS THE STATE'S PRIME IF AN I SHALL YA
CASE AND THEN ONLY IF THEY CAN DO THAT AND IT CREATES A KWEFR MATERIAL FACT, CAN YOU
THEN MOVE ON TO THE EVIDENTIARY HEARING. THAT'S WRONG. THE THIRD CIRCUIT
OVERRULED THAT PAR DIME IN E B VERSUS NARN ROWE THIS COURT ALSO ACCEPTED THAT ANALYSIS
BY VIER TWO OF COURT ORDER AND ALSO IN M F AND SEE NOW THE BURDEN INEFFECTIVE
LEAVES THE STATE. JUSTICE WAINER APTER: VERSUS EARN KNOW E
KEEPS COMING BACK TO THE CONSTITUTIONAL UNDER PINGS SO E B VERSUS VOERNL FLEE IS
6 YEARS BEFORE THE US SPROERT COURT SAYS THERE IS NO PROCEDURAL DUE PROCESS THAT
COMES INTO THIS AT ALL YOU HAVE KNOW E RIGHT TO A SEK HEARING YOU HAVE NO
RIGHT SO THERE IS NO BURDEN SHIFTING IT DOESN'T MATTER THERE IS NO SEK HEARING
IT'S JUST IF YOU ARE QUICK OF A SEX OFFENSE THEN THE STATE CAN SAY THAT
YOU AUTOMATICALLY ALL OF YOUR INFORMATION IS PUBLISHED. FLETCHER
C. DUDDY: RIGHT. SO AGAIN, YOUR HONOR, THE SUBMIT VERSUS DOE CASE I DON'T KNOW
IN TLES A PERFECT SIM TREE BETWEEN THE PAR DIME WAYNE WAN ^ CON ^ CONNECTICUT
DENT OF PUBLIC SAFETY VERSUS ^ CON ^ CONNECTICUT. FLETCHER C.
DUDDY: THAT I ALSO THE SUBMIT VERSUS DOE THAT WAS PLACED ON SOUTHERN AN THAT WAS
BASED ON THE SECTION FENDER REGISTRATION ACT WHICH ESSENTIALLY WAS CONGRESS
S. JUSTICE WAINER APTER: WHAT I AM TALKING ABOUT IS BASED
ON THE ^ CON ^ CONNECTICUT SEX OFFENDER REGISTRY STATUTE NOT SOUTHERN AN.
FLETCHER C. DUDDY: RIGHT THAT WAS MOTD LD OFF SOUTHERN AN SO WHAT HAPPENS
IS THE U.S. CONGRESS PASSES SOUTHERN AN WHICH IS THEIR MODEL VERSION OF WHAT A
MEGAN'S LAW REGISTRATION OR REGISTRY SHOULD LOOK LIKE AND THEY SAY STATES IF YOU
DON'T ADOPT THIS WE ARE GOING TO WITH HOLE TEN PUBLIC EMPLOYMENT RETIREMENT
SYSTEM OF THE BENLDZ AND FUNNELED WE GIVE YOU ^ CON ^ CONNECTICUT IS ONE OF THESE
STATES THAT ADOPTED THAT FRM SEE GETTING BACK TO WHAT I WAS PREVIOUSLY TALKING
ABOUT US HAVING A RISK BASED SIM TEM HERE IN NEW JERSEY, ^ CON ^ CONNECTICUT DOESN'T,
THEY SIMPLY HAVE BLANKET NOIFGS FOR EVERYONE AND THEN THE DURATION OF
REGISTRATION IS BASED ON THE UNDERLYING OFFENSE. SO THIS IS A COMPLEELTLY DIFFERENT
SYSTEM. I DON'T KNOW IF WE CAN DRAW MANY PARALLELS BETWEEN WHAT WE HAVE IN NEW
JERSEY AND HOW E B IS INTERPRETING THIS AND LFRMENT A IS INTERPRETING THIS AND
WHAT THEY HAVE IN ^ CON ^ CONNECTICUT. AND EVEN IF I'M WRONG, THIS IS THE BARGAIN
FOR EXCHANGE, RIGHT? THE ATTORNEY GENERAL'S OFFICE COULD HACH LITIGATED THIS
CASE, COULD HAVE CONVINCED JUDGE WOL OF SON OTHERWISE, BUT THEY DIDN'T, THERE
IS A SETTLEMENT. AND NOW PART OF THE BARRING AND THE BARGAIN FOR SCLANG FROM THE
REGISTRANTS PERSPECTIVE IS THAT THESE ISSUES, THE REPETITIVE AND COMPULSIVE
ISSUE WILL BE HANDLE NO DIFFERENTLY THAN ANY OTHER MEGAN'S LAW ISSUE, WHETHER IT
BE A HEARTLAND ARGUMENT OR AN EXPERT REPORT IS INTRODUCED OR A FACIAL
CHALLENGE TO THE SCALE OR ANYTHING LIKE THAT, THIS IS ALL HANDLE POST CONVICTION
WITHIN THE GENERAL FRAMEWORK OF THE TWO STEP PROCESS. CHIEF
JUSTICE RABNER: CAN YOU VISION A SITUATION WHERE THE REGISTRANT SAYS I WANT
LIFE TESTIMONY I WANT THE OPPORTUNITY TO CROSS-EXAMINE NATION AND IT WOULD BE
APPROPRIATE FOR THE TRIAL JUDGE TO SAY WHILE THIS IS CERTAINLY A RM AREA I AM NOT
PEARLING THAT? FLETCHER C. DUDDY: SO, I THINK THE NORM
WOULD BE TO PERMIT CROSS-EXAMINATION YOU COULD SEE A SCENARIO THOUGH YOUR HONOR
IN WHICH THE REPORT IS SO ABUNDANTLY CLEAR THIS IS THE ADTC REPORT WHICH IS NOT
THE CASE HERE BUT IT IS SO ABUNDANTLY CLEAR, AND THE THERAPY NOTES AND
SUMMARIES WHILE AT THE ADTC AND PERHAPS THE ADTC DISCHARGE SUMMARIES OR EVEN
CONTEMPORANEOUS RISK ASSESSMENTS, ALL OF THAT IN TOTALITY MAKE IT SO CLEAR THAT
THE PERSON WAS REAPPELLATE TIF AND COMPULSIVE MAYBE NOT EVEN BY CLEAR AND
CONVINCING EVIDENCE MAYBE BEYOND A REASONABLE DOUBT, AND IT WOULD BE FUTILE TO
BRING IN THE STATE'S DOCTOR TO SUBMIT HIM OR HER FOR CROSS-EXAMINATION. I THINK
THAT WOULD BE THE RARE OCCURRENCE THAT WAS NOT THE CASE HERE. IN FACT WHEN I LOOK
AT THIS REPORT I KNOW THAT THE PROSECUTOR'S OFFICE AND THE O A G THEY
HAVE COMMUNITY SUPERVISION FOR LIFE GONE TO GREAT LEENTS TO DRIEL DOWN THE FACT
OF THIS CASE AND SHOW WHY R.S. WAS CLEARLY AND CONVINCING RE FILLS A XN UCH WHEN
I LOOK AT THIS REPORT I DON'T SEE THAT AT ALL. JUSTICE SOLOMON:
DOES THE REGULAR HAVE TO DO MORE THAN SIMPLY WALK INTO CHAIRMAN BEERS ONLY THE
DEPARTMENT OF LAW AND PUBLIC SAFETY CONFERENCE AND SAY I WANT TO
CROSS-EXAMINE THE DOCTOR? OR I WANT FO HIRE AN EXPERT? DO THEY EVER TO DO MORE THAN
THAT OR AT LEAST LAY OUT WHAT IT IS THEY'RE TRYING TO SHOW OR HOPE TO
SHOW? AT LEAST CREATE AN ISSUE OF DISPUTE? FLETCHER C. DUDDY: RIGHT.
SO THE GENERAL ANSWER IS NO, AND THE REASON IT'S NO IS BECAUSE IF THE
REGISTRANTS HAVE TO COME TO COURT AND COME WITH A FORMAL PROVE OR EVEN INTRODUCE
SOME MODICUM OF EVIDENCE TO CONVINCE THE JUDGE THIS IS AN RELEVANT ISSUE THE
BURDEN IS SHIFTING OVER TO THEM. JUSTICE SOLOMON: NOT EVEN A MOTD
SFIED JUST SAYS THERE IS A FAK ISSUE BECAUSE HE CLAIMS I WAS BORN IN 19
AN 51, I WAS BORN IN 62 OR I WAS BORN IN 48. I MEAN, DO YOU HAVE TO PRODUCE SOMETHING
TO INDICATE THERE IS A FACT MATERIAL ISSUE IN DISPUTE HERE THAT WE NEED
TO TAKE THE COURTS TIME AND HAVE A HEARING ON RATHER THAN RESOLVE ALL THIS IN THE
CONFERENCE. FLETCHER C. DUDDY: YEAH. I DON'T THINK THAT
THAT IS COMPLETELY UNREASONABLE, WHICH IS EXACTLY WHAT HAPPENED HERE, RIGHT? THE
ATTORNEY SUBMITTED A LETTER ESSENTIALLY DOING WHAT YOUR HONOR IS SUGGESTING,
THEN CAME TO COURT AND REITERATE THE THAT, AND WHAT SHOULD HAVE HAPPENED IS THE
JUDGE SHOULD HAVE SAID OKAY I UNDERSTAND THAT THERE IS A FACTUAL ISSUE HERE, YOU
ARE GOING TO GET AN EXPERT, I WOULD ALSO SAY THIS AS AN ASIDE. IF THE TRIAL
ATTORNEY SAID JUDGE IOWA THAN THE TO GET AN EXPERT REPORT THAT SPEAKS TO THE
STATISTICAL WRIST MANY OF THOSE WHO ARE INCARCERATED AT THE A #2350E DEE
THIS WHY THEN IOWA THAN TO USE THIS REPORT TO ARGIROPOULOS WHY MY CLIENT SHUBL
ON THE INTERNET RIGHT I THINK THE JUDGE WOULD HAVE WEM BEEN WITHIN HER RIGHT
TO SAY IS THAT IS NOT RELEVANT. JUSTICE SOLOMON: SHE WOULD HAVE SAID
MROERN THAT KNOWING THE JUDGE 123450 SHE MAY HAVE SHE MAY HAVE RIGHT BUT
UNDER THOSE CIRCUMSTANCES THE JUDGE MAY HAVE SAID THAT IS REALLY NOT RELEVANT WHAT
WE ARE GETTING AN IS WHETHER OR THE UNDER LYING CONDUCT IS CLEAR AND REELG
TIFR BY CLEAR AND COMBINSING EVIDENCE. AGAIN GETTING BACK TO THE GENERAL LIT PLUS
TEST FOR 30 YEARS, IT'S IS THIS RELEVANT, ARE YOUR PROOFS RELEVANT TO WHATEVER
THE ISSUE IS, AND WOULD IT HELP US RESOLVE THE ISSUE, WOULD IT BE HELPFUL. AND
SO THERE CAN BE THIS INFORMAL COMMUNITY SUPERVISION FOR LIFE COLLOQUY
QUESTIONING AT THE IN CAMERA CONFERENCE, ANYTHING MORE FORMAL OR BURDENSOME THAN
THAT WOULD BE SHIFT AREING THE BURDEN TO THE REGISTRANTS, WHICH IS
IMPERMISSIBLE, IMPERMISSIBLE PURNT TO EFRMENT B THIS COURT, THE ORDER FROM THIS
COURT. THE OTHER THIRNG I WOULD ADD IS. CHIEF
JUSTICE RABNER: THAT IS A GREAT SIGNIFICANT WAY FOR ME TO JUST TELL YOU WE
ARE AT 35-MINUTE MOOSHG IN YOU COULD TRY TO DISTILL YOUR ARGUMENT AT THIS
POINT AND OTHER SHORT ONES THEN LET'S TRY TO MOV ON PLEASE.
FLETCHER C. DUDDY: VERY WELL YOUR HONOR. THREE QUICK THINGS. WE HAVE BEEN
TALKING ABOUT WHAT A REGISTRANT IS ENTITLED TO DO AT THE POST CONVICTION
MEGAN'S LAW PROCESS, THE STEP ONE AND STEP TWO LOJ AN ARGUMENT, INTRODUCE THEIR
OWN PROOFS, AND CROSS-EXAMINE THE DOCTOR. RIGHT? WHAT WE WL HAFBLTH TALK
ABOUT MUCH AT ALL IS WHAT THE STATE SHOULD BE REQUIRED TO DO TO KIEFR BRIDGE THAT
GAP OR CLOSE THE DAYLIGHT BETWEEN THE FINDING MADE AT SENTENCING BELOW UNDER
THE POLICIES AND PROCEDURES STANDARD AND THE MUCH HIRE STANDARD AT THE MEGAN'S LAW
HEARING THE CLEAR AND CONVINCING START. I WOULD STAY SAY THAT IT'S IN THE
NECESSARILY THE REGISTRANTS PLACE OR PREROGATIVE TO TELL THE STATE HOW THEY COMMUNITY
SUPERVISION FOR LIFE PLEAD THEIR CASE AND CLOSE THE GAP, BUT IT SUFFICE TO SAY
AND THIS IS WHY IOWA THAN TO POINT THIS OUT IT SHOULD MAY HAVE BEEN MORE THAN WHAT
WAS DONE LERER IN THIS CASE. AND YOU CAN REALLY LOOK AT THIS IN THE TRANSCRIPT
IT' REALLY PAGES 18 AND 19 OF THE TRANSCRIPT WHERE THE PROSECUTOR SIMPLY SAYS QUOTE
I ASK THE COURT TO PLEASE MAKE A FINDING BY CLEAR AND CONVINCING EVIDENCE
THAT HE R.S. WAS REPETITIVE AND COMPULSION I HAVE. THE PROSECUTOR IS NOT POINTING
TO THE NTD LYING REPORT WITH ANY SPECIFICITY, THE PROSECUTOR IS NOT
INTRODUCING ANY OTHER EVIDENCE THAT WOULD BOLSTER THE FINDING BELOW, PERHAPS THERAPY
REPORTS THROUGH THE A TEE DEE CREDIT THEY ARE SIMPLY SAYING JUDGE, SAY THE MANL
I CAN WORDS. AND THEN THE COURT THIS IS AGAIN ON PAGE THIS IS AT PAGE 18, LINE
16. THE COURT SIM MR. I SAYS WELL THERE WAS A FIND FRG AVENEL IT WAS AVENEL WHO
MADE THE FIENTDING. HE R.S. WOULD NOT HAB ELIGIBLE TO SERVE HIS SENTENCE
AT AVENEL IF HE WAS NOT NOUNLD TO BE REPELS TIF AND XULS I HAVE. SO THE JUDGE
SAYS I BASE MY FINDING FROM THE REPORTS ALONE THAT HE IS REPETITIVE AND
COMPULSIVE AND THEN THE PROSECUTOR SAYS YET AGAIN AND JUDGE IS THAT CLEAR AND
CONVINCING? THIS MAKES THE ENTIRE FINDING OR PROCESS HOLLOW. IF ALL WE ARE GOING
TO DO IS ASK THE JUDGE TO LOOK AT THE OLD REPORT AND COMMUNITY SUPERVISION FOR
LIFE SAY THOSE MAGIC WORTSDZ CLEAR AND CONVINCING EVIDENCE CALLING IT WHAT YOU WANT
A RUBBER STAMP, SHALLOW SHTHS HOLLOW, ABOUT YOU THE STATE SHOULD HAVE TO
DO MORE THAN THAT THEY SHOULD HAVE T TO DO MORE TO KIEFR CLOSE THAT GAP WAYNE KWAN IF
THE REPORT SETS FORTH THAT THE PERSON WAS REPETETIVE AND COMPULSIVE BECAUSE
THERE WERE MANY DIFFERENT VICTIMS AND THE PERSON SAID THAT HE WAS COMPELLED TO
DO IT AND HE COULDN'T STOP HIMSELF, I'M NOT UNDERSTANDING YOUR ARGUMENT
THAT A REPORT CAN NEVER IN AND OF ITSELF BE CLEAR AND CONVINCING EVIDENCE.
FLETCHER C. DUDDY: I THINK THAT AS WE SAY IN OUR BRIEFS, IN THE IT'S VERY
IT'S MORE OFRN THAN NOT IT IS NOT THAT CLEAR IT'S ACTUALLY VERY AMBIGUOUS AND
WE WOULD SAY IN THE MIND RUN OF CASES IT HAS TO BE SOMETHING MORE THAN BUT
EVEN IF IT IS JUST THE REPORT EVEN IF IT IS THE EXCEPTION TO THE RULE IT IS JUST
THE REPORT, WE SHOULD HAVE WE SHOULD DEMAND OF THE PROSECUTORS TO DO
SOMETHING MORE THAN SIMPLY SAY LOOK AT THE REPORT. POINT TO THE SECTION THAT'S
CLEAR. POINT TO THE PARAGRAPH THAT'S SO CLEAR. DO SOMETHING HERE TO COMMUNITY
SUPERVISION FOR LIFE BRIDGE THAT GAP. AND IN THIS CASE. JUSTICE
NORIEGA: ALONG THE SAME LINES, ARE WE VIEWING THE REGISTRANT AT THE TIME OF
SENTENCING IN TERMS OF WHETHER OR NOT THEORY FETS TIF AND XUL I HAVE.
FLETCHER C. DUDDY: YEAH WE ARE AND THAT'S WHY THIS IS SOMETHING OF
A WONG KEY STATUTE IF YOU WILL BUT THIS IS A BACKWARD LOOKING ASSESSMENT, A BACK
WITH REGARD. JUSTICE NORIEGA: THEN WHY NOT ALLOW FOR THE
ABILITY TO RELY ON WHAT THE TRIAL JUDGE HAS ALREADY FOUND?
FLETCHER C. DUDDY: BECAUSE THE TRIAL JUDGE MADE THIS FINDING UNDER A MUCH LOWER
EVIDENTIAL STANDARD. I THINK THAT A LOT OF THE SAME FACTS MAY WELL PASS
MUSTER UNDER BOETD STANDARDS AND AT BOTTOM WE REALLY ARE TALKING ABOUT THE ADTC
REPORT THAT SO THAT IS GOING TO LOONL LARGE OVER ALL OF THIS BUT AGAIN THERE
SHOULD BE SOMETHING MORE THAN SIMPLY SAYING HERE'S THE REPORT, IT PASSED MUSTER
ND THE LOWER STANDARD, SO JUST MAKE IT SO UNDER THE HIRE STANDARD AND THAT'S
QUITE LITERALLY WHAT WAS DONE HERE. THE OTHER THIRNG I WOULD JUST
ADJUST BRIEFLY IS ONE THING THAT I THINK COULD HELP MOVE FORWARD THE FRAMEWORK
YOUR HONOR TO COMMUNITY SUPERVISION FOR LIFE CLEAR UP SOME OF THE CONFUSION IS
YOU SEE THIS IN THE TRANSCRIPT IS THERE IS A LOT OF CONFUSION ABOUT WHETHER OR
NOT THIS WAS EVEN ALIVE ISSUE IN THIS CASE BECAUSE KEEP IN MIND THIS ONLY BECOMES
ALIVE ISSUE IF THE REGISTRANT IS FOUND TO HAVE BEEN IS FOUND TO BE A TIER ONE LOW
RISK REGISTRANT OR TIER TWO WITH ONE OF THOSE 3 STATUTORY EXEMPTIONS, RIGHT?
SO UNTIL WE GET THERE, THIS DOESN'T EVEN BECOME A LIEFR ISSUE. AND SO DURING THE TIER
HEARING THE PROSECUTOR WANTED TO MAKE R.S. A TIER TWO REGISTRANT WHICH WOULD
ORDINARILY ENTAIL INTERNET PUBLICATION. SO THIS IS A MOOT POINT, RIGHT? AND SO
THAT'S WHAT THE PROSECUTOR WAS TRYING TO DO. AND THEN ONLY AT THE TAIL END
OF THE HEARING DID THE STATE MORE OR LESS TRY TO COMMUNITY SUPERVISION FOR LIFE
PREEMPT THIS ARE AND CREDIT ISSUE COMING UP AGAIN IN THE LAW DIVISION BASED ON
APPELLATE REMAN BECAUSE IF THERE WAS AN APPEAL OF THE FINDING ABOUT TIER TWO WHAT
I AM REALLY GETTING AT HERE IS SO EVERYONE IS ON NOTICE OF THIS, RIGHT? IT WOULD
BEHOOVE EVERYONE INVOLVED IN THIS COURT IN ITS OPINION COULD REQUIRE THE PROSECUTOR
TO PUT THIS ISSUE IN THE INITIAL NOTICE THAT GOES OUT TO A REGISTRANT. AND
THIS IS AT THIS IS ARE PEE A 13 AND SO THIS IS WHEN THE PROSECUTOR'S OFFICE SOIFRS
NOTICE OF THEIR TEARING PROPOSALS AND RISK PROPOSALS THEY DO THIS IN PERSON TO
THE REGISTRANT THEY SAY MA'AM, YOU HAVE TO REGISTER UNDER NEW JERSEY MEGAN'S LAW
AND THIS FACT OF INFORMATION YOU WILL FIND THE PROSECUTORS TEARING PROPOSALS
AND WHO IN TS COMPLUN WE WILL NERVE AND SO ON AND SO FORTH IF YOU WHAT THAN THE
TO OBJECT THIS THIS THERE ARE UKSS INSTRUCTIONS AND THAN HOW TO DO THAT THE
VERY FIRST PACKET IN THAT NOTICE IS A NOTICE IT IS R PEE A 13 AND IT CLEARLY EXPLAINS
TO THE REGISTRANT WHAT THE PROSECUTOR WANTS TO DO HERE AND WHY THEY WANT TO DO
IT. AND WHAT IT DIDN'T SAY IN R.S.S CASE AND WHAT IT LICENSE NEVER SAYS
ACROSS THE BOARD ON THIS ISSUE IS THAT WE AS THE PROSECUTOR'S OFFICE WANT TO PURSUE
INTERNET NOIFGS BECAUSE OF THE UNDERLYING RE PELS TIF AND COMPULSIVE FINDING.
AND SO IT WOULD HELP ALL INVOLVED INCLUDING THE STATE IF THAT NOTICE WAS FRONT
AND CENTER. AND SO IT COULD SAY WE WANT TO PURSUE INTERNET PUBLICATION
BECAUSE WE DEEM YOU TO BE A TIER TWO REGISTRANT AND/OR BECAUSE YOU ARE FOUND TO BE
REPELS TIF AND COMPULSIVE BELOW. THE LAST POINT I WILL MAKE YOUR HONOR
AND THANK YOU VERY MUCH FOR THE TIME, IS THAT MUCH LIKE ANY PROSECUTORIAL DECISION,
PROSECUTORS STILL HAVE DIFFICULTIES CORRECTION OVER THIS, RIGHT? SO A
PROSECUTOR A MEGAN'S LAW PROSECUTOR MAY WELL LOOK AT THIS INFORMATION POST CONVICTION
IN THE MEGAN'S LAW WORLD, LOOK AT ALL OF THE INFORMATION, THE A TEE DEE
CREDIT REPORT EVERYTHING 245 COMES AFTER AND SAY GEEZ YOU KNOW WHAT, WHILE THIS
MAY HAVE BEEN CLEAR AND CONVINCE WILL BY A POLICIES AND PROCEDURES OF THE
EVIDENCE, MORE LIKELY TRUE THAN NOT, 51 PUBLIC EMPLOYMENT RETIREMENT SYSTEM, 49
PUBLIC EMPLOYMENT RETIREMENT SYSTEM, INL KNOW THE SO SURE THIS IS CLEAR. THERE
SEEMS TO BE SOME AMBIGUITY IN THE REPORT. THERE ARE MANY PRUSHS WHO BELIEVE THAT
THEY EVER THAT DISCRETION TO THEN NOT PURSUE INTERNET PUBLICATION BASED
ON THE REFILLS TIF AND COMPULSIVE FINDING I AM NOT GOING TO NAME NAMES NOW THERE ARE
SOME WHO DO THAT, OTHERS WOULD LIKE TO DO THAT BUT FEEL CORRESPONDENCE STRAINED
IFRMTH WHAT IS YOUR REFRM DEPARTMENT OF EDUCATION. FLETCHER C.
DUDDY: MY RECOMMENDATION IS TO SIMPLY SAY PROSECUTORS HAVE THE DISCRETION TO PURSUE
THIS FINDING, THE STATUTE GIVES THEM THAT, THE USES THE WORD MAY, AND INHERENT
IN EVERY DISCUSSION THEY MAKE THEY ALWAYS HAVE DISCRETION. CHIEF
JUSTICE RABNER: THANK YOU VERY MUCH. FLETCHER C. DUDDY:
THANK YOU VERY MUCH YOUR HONORS. CHIEF JUSTICE RABNER: MR.
PORTER. CHIEF JUSTICE RABNER: MR. PORTER. JALEN D. PORTER:
GOOD AFTERNOON, YOUR HONORS. MAY IT PLEASE THE COURT. I WANT TO
ADDRESS TWO QUESTIONS PRESENTED BY YOUR HONORS BS, THE FIRST CONCERNING THE CONSTITUTIONAL
ISSUE AND WHETHER THERE IS A DUE PROCESS RIGHT CHLTH. I JUST WANT TO EMPHASIZE
THAT THIS CASE ALSO IMPLICATES THE NEW JERSEY DOCTRINE OF FUNDAMENTAL FAIRNESS AND THIS
COURT HAS HELD IN THE MATTER OF KRA THAT DOCTRINE OF FUNDAMENTAL FAIRNESS APPLIES TO MEGAN'S
LAW TIERING. SO EVEN WHEN PROCEDURES ARE NOT CONSTITUTIONALLY COMPELLED RGS
PROCEDURES ARE REQUIRED TO PROTECT THE INTERESTS OF THE REGISTRANT. JUSTICE
WAINER APTER: WOULDN'T IT BE ORDER FOR US TO USE THE DOCTRINE OF FUNDAMENTAL FAIRNESS
TO GET AROUND A CONSTITUTIONAL THAT SAYS THERE ARE NO PROCEED TEKZ REQUIRED HERE, POT
PORT ALSO IN THE MATTER OF FWCHLT B THIS COURT HAS SAID THAT THE JUDICIARY HAS AN IMPORTANT
RESPONSIBILITY TO ENSURE THE BALANCING OF THE LIFE OF THE COMMUNITY AND THE LIFE OF THE
REGISTRANT AN HERE THIS VERY BALANCE IS WHAT IS AT ISSUE. THEY HAVE THE COMMUNITY OAE
RIGHT TO PROTECT ITSELF AND WE ALSO HAVE THE REGISTRANT'S RIGHT TO NOT BE SUBJECT TO
IMMEDIATE AND IRREPARABLE HARM DUE TO THE WIDESPREAD PUBLICATION OF THEIR PERSONAL
INFORMATION. I WOULD ALSO LIKE TO ADDRESS THE QUESTION CONCERNING WHETHER THE
ADD TK REPORT ITSELF CAN BE CONCLUSIVE EVIDENCE BEYOND -- CAN BE CONCLUSIVE EVIDENCE
BY A CLEAR AND CONVINCING STANDARD OF COMPETITIVE REP. PULSE S- BUT MORE RELEVANT
EVIDENCE BECOMES AVAILABLE SUCH AS SEX OFFENDER TREATMENT AN SUBSEQUENT PSYCHIATRIC EVAL
UATIONS. JUSTICE WAINER APTER: I THOUGHT THAT COUNSEL AGREED THAT THIS
QUESTION IS NOT WHETHER THE PERSON WAS REPETITIVE OR COMPULSIVE AT THE TIME OF TIERING.
THE QUESTION IS WHETHER THE PERSON WAS REPETITIVE AN COMPULSIVE AT THE TIME THE OFFENSE
WAS COMMITTED. JALEN D. PORTER: YES, YOUR HONOR. AND THE VERY
BASIS OF ANY PSYCHOLOGICAL EVALUATION IT IS A BACKWARD LOOKING ASSESSMENT SO THERE IS
NOTHING THAT PREVENTS A SUBSEQUENT EVALUATION FROM GOING BACK AND LOOKING AT THE MOTIVE
OF THE REGISTRANT AT THE TIME OF HIS OFFENSE. JUSTICE PIERRE-LOUIS: IS IT
THE TIME OF THE OFFENSE OR THE TIME OF SENTENCING THAT THE DEFENDANT IS BEING VIEWED.
JALEN D. PORTER: IT IS AT THE TIME OF SENTENCING BUT THEY ARE DISCUSSING
THE MOTIVE AT THE TIME THE CONDUCT WAS COMMITTED AND SO THAT IS WHY THE SEX OFFENDER TREATMENT
IS RELEVANT AND THAT IS WHY SUBSEQUENT EVALUATIONS BECOME RELEVANT BECAUSE IT
DIRECTLY CHALLENGES THAT A D T C REPORT. IT ALSO PRESENTS AN ISSUE THAT THE
COURT HAS TO ADDRESS IN THIS PARTICULAR FORM OF EVIDENCE BECAUSE THE INITIAL A D T C REPORT
IS BASED ON THE REGISTRANT'S MIND FRAME AT THE TIME BEFORE THEY UNDERGO TREATMENT AN
GET A BETTER UNDERSTANDING OF THEIR BEHAVIORS SO WE HAVE THAT ADDITIONAL COMPONENT THAT
BECOMES AVAILABLE AFTER SENTENCING. AND THERE IS ALSO -- AS THE ATTORNEY GENERAL
STATED IN THEIR BRIEF, A DEFENDANT WHO IS DEEMED REPETITIVE AND COMPULSIVE BELONGS TO
A CATEGORY OF OFFEND ERS WHO POSE THE HIGHEST RISK OF RECIDIVISM, BUT AT THE SAME TIME,
THIS IS A DISCRETE GROUP OF INDIVIDUALS WHO ARE BOTH DEEMED REPETITIVE AND COMPULSIVE
AND AT A LOW RISK OF RECIDIVISM AN THAT COMES FROM OUR R R A S CLASSIFICATION WHICH IN
EVERY MEGAN'S LAW CASE IS THE EVIDENCE PRODUCED BY THE STATE TO REQUEST TIER CLASSIFICATION
AN NOTIFICATION RERMENTS SO THERE IS A TENSION WITHIN THAT STATE'S EVIDENCE THAT A COURT
HAS TO ADDRESS BEFORE SUBJECTING A REGISTRANT TO INTERNET NOTIFICATION. I,
ALSO, HAVE TO ADD THAT AS HAS BEEN STATED IN PREVIOUS ARGUMENTS BEFORE THE COURT TODAY,
THE ULTIMATE PURPOSE OF THE ENTER NET REGISTRY, OF MEGAN'S LAW IS TO PROTECT THE PUBLIC
AND THAT PURPOSE IS NOT SERVED WHEN THE REGISTRANT'S ARE ERRONEOUSLY INCLUDED ON THE
LIST AND THE OVERALL ACCURACY AND EFFECTIVENESS OF THE REGISTRY IS NIN ISSUED DUE TO ITS
OVER INCLUSIVENESS. THANK YOU. THE COURT: THANK YOU VERY MUCH
COUNSEL. MS. BRADLEY. JULIA BRADLEY: GOOD AFTERNOON.
MAY IT PLEASE THE COURT. I AM MINDFUL OF THE TIME SO I WOULD JUST LIKE TO START
BY TRYING TO TRY ANOTHER WAY OF GETTING AT JUSTICE WAINER APTER'S QUESTION ABOUT THE
RELEVANCE OF SUBSEQUENT EVIDENCE TO THE BACKWARDS DETERMINES AS TO WHETHER THE CONDUCT
WAS BLANK BY REPETITIVE AN COMPULSIVE BEHAVIOR AND THEN I WOULD LIKE TO SPEND A FEW MEANT
ON THE STANDARD IF I MAY. THE COURT: PLEASE TRY TO KEEP YOUR VOICE UP AS
WELL, BRAD. JULIA BRADLEY: I'M SORRY. YOUR HONOR, THE STATE'S
POSITION IS THAT THIS REPETITIVE AND COMPULSIVE FINDING IS A SO-CALLED STATIC FACTOR THAT
INDICATES THIS IN TRACT TABL RISK OF RECIDIVISM. WE HAVE DOUBTS ABOUT THAT, BUT IF YOU
ACCEPT THAT PREMISE, THE FACT THAT A REGISTRANT PROGRESSED SPEEDILY THROUGH TREATMENT
AND HAD THESE CONTINUED LOW RISK SCORES ON THESE MODERN ACTUARIAL INSTRUMENTS STRONGLY
SUGGESTS THAT THAT ORIGINAL FINDING WAS INACCURATE IN THE FIRST PLACE OR AT LEAST
CASTS SOME DOUBT ON THAT AND THAT'S EXACTLY WHAT R.S. WAS SEEKING TO EXPLORE WHEN IT SUBMITTED
THAT DOCUMENT OR EVIDENCE WITH THE PREHEARING SUBMISSION. JUSTICE WAINER
APTER: THAT'S NOT SIMPLY POLICY IT'S WHAT THE POLICY SAYS, IT SAYS THE PUBLIC MAY WITHOUT
EXCEPTION OBTAIN ACCESS TO THE INTERNET REGISTRY, CONCERNING ALL OFFEND ERS WHOSE RISK
OF REOFFENSE IS MODERATE OR LOW AND WHOSE CONDUCT WAS FOUND TO BE CHARACTERIZED BY A PATTERN
OF COMPETITIVE REPEAT ACTIVE BEHAVE PURSUANT TO REVISIONS OF 47-3. AND WHEN YOU GO THERE
IT TALKS ABOUT WHEN YOU CAN BE SENTENCED TO THE A D T C. THE LEGISLATURE
DECIDED WHETHER OR NOT YOU END UP ON THE REGISTRY IS WHETHER OR NOT YOU WERE SENTENCED
TO THE A D T C HOW DO WE IGNORE THAT OR WHY DO WE IGNORE THAT. JULIA BRADLEY:
THIS COURT IN HOWARD RECOGNIZED THAT THAT REPORT THAT WAS MADE -- THAT WHEN THE COURT
MAKES ITS FINDING BASED ON THE PREPONDERANCE OF THE EVIDENCE STANDARD AT SENTENCING, RELYING
ON THAT REPORT, IT CARRIES AN ENHANCED RISK OF ERROR THAT IS INHERENT IN THE REPORT BECAUSE
OF THAT LOWER STANDARD AND THAT IS BECAUSE THE RIGHTS THAT ARE BEING ADJUDICATED UNDER
THE SOKS OFFEND ERS STATUTE AT SENTENCING ARE RELATIVELY MINIMAL TO THE RIGHTS THAT ARE
AT ISSUE IN THE MEGAN'S LAW TIERING PROCESS. THE SECOND QUESTION IS I DON'T THINK
WE NEED TO IGNORE WHAT THE LEGISLATURE SAID BUT LOOK AT THE FACT THAT THEY LEGITIMATE
LATD THIS 2014 AMENDMENT IN THE CONTEXT OF THIS ENTIRE MEGAN'S LAW FRAMEWORK WHICH SAYS
WHEN WE MAKE DECISION OF DEPRIVING REGISTRANT'S OF SIKT PRIVACY INTERESTS WE DO SO IN
THIS TIER, OUTLINE OF PROCEDURES AN THE ATTORNEY GENERAL'S GUIDELINES PROVIDE THAT FRAMEWORK
AND THAT'S THE TIME THAT THE ASSESSMENT IS MADE. TO REACH THE LEVEL OF CERTAINTY
THAT THIS COURT AN OTHER COURTS HAVE REQUIRED FOR THAT PROCEEDING REALLY REQUIRES ANALYSIS
AND INVESTIGATION INTO ADDITIONAL EVIDENCE THAT IS AVAILABLE TO PROVIDE THE COURT, WHICH IS
OPPORTUNITY TO GAUGE -- TO MAKE THIS FINDING UNDER THE HIGHER LEVEL OF CERTAINTY THAT IS
REQUIRED. I'D LIKE TO JUST TURN VERY BRIEFLY JUST TO THE STANDARD, BASICALLY
THE STATE OF NEW JERSEY ADOPTS THE OFFICE OF PUBLIC DEFENDER'S ARGUMENT BUT IF THE COURT
IS REQUIRED TO IN SOME KIND OF SHOWING, IT SHOULD BE IN THE FORM OF A PROFFER THAT IS
VERY MINIMAL AND I THINK IT'S HELPFUL TO LOOK AT WHAT THIS LOOKS LIKE WITH RESPECT TO
THE DIFFERENT CATEGORY FOR RELEASE OF CHALLENGE GENTLEMAN'S THAT A REGISTRANT MIGHT SEEK
TO REBUT THIS REPETITIVE AN COMPULSIVE FINDING. THE FIRST ONE MR. DUDDY MENTIONED
WAS THIS ARGUMENT ONLY BUCKET BECAUSE IT IS THE STATE'S BURDEN TO CLOSE THE GAP BETWEEN
THE STANDARD YOU HAVE PROOF. THE REGISTRANT IS ENTITLED TO MAKE AN ARGUMENT AS PART OF
HIS PREHEARING SUBMISSION JUSTICE WAS DONE HERE IN THE PROCEEDINGS BELOW TO ARGUE THAT
THE EVIDENCE DOES NOT MEET THE CLEAR AND CONVINCING STANDARD AND, IF SO, IT MAY BE THE
CASE THAT THERE IS NO ADDITIONAL HEARING REQUIRED, BUT THE COURT DOES HAVE TO CONSIDER
THE ARGUMENT AND IT DOES HAVE TO STATE ITS REASONS ON THE RECORD. I THINK
THE SECOND BUCKET OF EVIDENCE IS THAT A REGISTRANT COULD ARGUE THAT THE PRIOR FINDING
IS IN ACCURATE BECAUSE OF ADDITIONAL RELEVANCE LIKE WHAT R.S. SOUGHT TO HAVE CONSIDERED
HERE, THESE LOW RISK REPORTS OR THERAPEUTIC RECORDS OR EXPERT TESTIMONY BASED ON THIS
UPDATED PSYCHOLOGICAL EVALUATION AND AGAIN, IT MAY BE THE CASE THAT A COURTESIES A MEGAN'S
LAW TIERING COURT CEASE THAT REPORT AND SAYS THIS REPORT IS SUFFICIENT FOR ME TO DETERMINE
THAT THE STATE CANNOT MEET ITS CLEAR CONVINCING -- IT'S BURDEN UNDER THE CLEAR AND CONVINCING
STAN TARD AND THERE ARE THERE IS NO MORE HEARING REQUIRED MANY. AND THEN
THE THIRD AND JUSTICE SOLOMON, I THINK TO ADDRESS YOUR QUESTION, IN TERMS OF THE
CROSS-EXAMINATION, A REGISTRANT MIGHT SEEK TO RAISE A CHAL LEDGE THAT'S AT 82 C, VULNERABLE
TO ATTACK FOR SOME REASON EITHER ON THE FACTS OR ON THE CONCLUSIONS, ONE EXAMPLE IS THAT THERE
MEMBER REASONS TO QUESTION THE PSYCHOLOGIST'S CONCLUSIONS BASED ON THE REGISTRANT'S UPDATED
PSYCHOLOGICAL, EVALUATION, THEY MIGHT SEEK TO EXAMINE THE PSYCHOLOGIST ABOUT THE VALIDITY
OF THE REPETITIVE AN COMPULSIVE FINDING IN LIGHT OF WHAT HAS HAPPENED OR THEY MIGHT SEEK
TO CHALLENGE THE RELIABILITY OF THE REPORT. IN TERMS OF THE PROFFER IF THE
COURT IS GOING TO REQUIRE ONE, IT SHOULD BE TASH DASH YOU KNOW, IT MAY APPROPRIATELY ACT
THE REGISTRANT TO EXPLAIN WHICH OF THESE SCENARIOS APPLY WITH THE KA YACHT THE
REGISTRANT SHOULD NOT BE FORCED TO GIVE AWAY THEIR CASE. IN ANY EVENT, THERE
SHOULD NOT BE ANY KIND OF STRINGENT BURDEN OF WHICH IS HOW I UNDERSTAND THE ATTORNEY
GENERAL'S FRAMEWORK TO PROPOSE. I THINK THIS IS THE KEY DISTINCTION TO DETERMINE A MORE
FLEXIBLE PROFFER APPROACH THAT THIS COURT HAS TAKEN IN THE CASES THAT WE CITE IN OUR BRIEF
VERSUS THE ATTORNEY GENERAL'S PROPOSAL. AND YEAH, AND I JUST ONE MORE WORD
ON THE ATTORNEY GENERAL'S PROPOSAL. I THINK TASH DASH I READ THE STEP 1 AND STEP 2 IS
KIND OF A COMPLICATED WAY OF SAYING THE REGISTRANT JUST IMMEDIATELY HAS THIS BURDEN
OF EVIDENTIARY PRODUCTION IMMEDIATELY GOING INTO THE HEARING BECAUSE I READ STEP 1 TO REQUIRE,
YOU KNOW, PRIMA FACIE EVIDENCE, WHICH I THINK IN MOST CASES IS JUST GOING TO BE THE STATE
RELYING ON THE PRIOR A D T C REPORT AND I THINK THIS REALLY CHIPS AWAY AT THE STATE'S
BURDEN TO PRODUCE EVIDENCE THAT NEEDS CLEAR AND CONVINCING. AGAIN WE HAVE THIS RUBBER
STAMPING CONCERN THAT MR. DUDDY AND MR. PORTER ALREADY MENTIONED. I THINK
THE FINAL (MR. I DRAWN FROM THIS COURT'S CASES IS THAT IN ANY CASE IT SHOULD BE THE NORM
THAT THESE PROCEDURES ARE AVAILABLE TO THE REGISTRANT BUT IF THE COURT IS GOING TO DIS
ALLOW IT IT DOESN'T REALLY EXPLAIN WHY IT IS DOING SO. THE COURT: THANK YOU,
COUNSEL. MR. HEIN. KEVIN J. HEIN: GOOD AFTERNOON, YOUR HONORS,
MAY IT PLEASE THE COURT. I WILL TRY TO BE AS SUCCINCT AS POSSIBLE KNOWING THE HOUR.
FIRST, I WOULD LIKE TO ADDRESS JUSTICE WAINER APTER'S POINT. NOW,
CONCEDINGLY, THE STATE HAS APPROACHED THIS WHOLE CASE WITHIN THE CONTEXT OF THE HOV MAN
ORDER SO WE DIDN'T RAISE THE ISSUE THAT YOU'RE ASKING ABOUT TODAY YOUR HONOR.
HOWEVER, I TOOK A CRASH COURSE IN MEGAN'S LAW PREPARING FOR THIS CASE AN IT STOOD OUT TO
ME AS WELL HOW PLAIN THE LANGUAGE IS IN THE STATUTE REGARDING WHAT ASPECT OR HOW THE REP
ETITIVE AND COMPULSIVE QUESTION IS TO BE ANALYZED IN THE COURT AN IT IS SOLELY ND YOU THE
SENTENCING STATUTE WHICH IS 43-7. SO, THE STATE, WOULD CERTAINLY NOT OBJECT
TO AND WE AGREE WITH THE PROPOSITION THAT, AGAIN, AND, ALSO, UNDER THE FEDERAL CASES THAT HAVE
BEEN CITED THAT THERE IS NO DUE PROCESS RIGHT TO AN ADDITIONAL HEARING WITH REGARD TO
REPETITIVE AN COMPULSIVE FINDING. JUSTICE WAINER APTER: YOUR AFRS SIS POINT
HERE WAS IT DOESN'T MATTER WHETHER THERE WAS A RIGHT BECAUSE THE STATE SIGNED THE SETTLEMENT
AGREEMENT AND THE SETTLEMENT FWRAEMENT SAYS IT HAS TO BE CLEAR AND CONVINCING, ETC., ETC..
KEVIN J. HEIN: THE STATE WAS NOT A PART OF THAT CASE. JUSTICE
WAINER APTER: WHO WAS A PART OF THAT CASE. KEVIN J. HEIN: I BELIEVE IT WAS
THE ATTORNEY GENERAL'S OFFICE. I DON'T KNOW EXACTLY WHAT WENT INTO THAT SETTLEMENT
AGREEMENT. HOWEVER, I THINK THE CASE THAT YOUR HONOR CITES TODAY AS WELL AS THE PLAIN
LANGUAGE OF THE STATUTE WOULD TEN TO MILITATE AGAINST THAT. HOWEVER, I WOULD
LIKE TO PUT THAT TO THE SIDE NOW AND ADDRESS THE CASE UN THE FRAMEWORK OF THE HOFFMAN
ORDER BECAUSE WE BELIEVE THAT THE DECISION BELOW SHOULD BE EQUALLY AFFIRMED. AT
THE OUTSET, THE STATE IS NOT OBJECTING TO MANY OF THE THINGS THAT THE DEFENSE IS ASKING
FOR. THE STATE DOES NOT OBJECT TO THE REGISTRANT MASH LING FORTH INFORMATION, MARCH SHLING
FORTH EXPERT TESTIMONY, MARBLING FORTH EVIDENCE IN WHATEVER FORMAT HERE OR SHE DESIRES.
THE COURT: DID YOU TAKE ISSUE WITH MR. DUDDY'S RECITATION EARLIER WHERE HE
SAID WE ASKED IF WE COULD PUT ON A WITNESS AN WE WEREN'T PERMITTED TO DO SO HOOEN HOOIN
ABSOLUTELY. THE COURT: IF YOU LIKE I CAN GET TO THAT NOW. THE
COURT: PLEASE. KEVIN J. HEIN: I TAKE ISSUE WITH THE COURT OUTLYING THAT
HE IS SAYING THAT SHOULD HAVE BEEN FOLLOWED. I HAVE BEEN IN COMMUNICATION WITH OUR MEGAN'S
LAW ATTORNEY OVER THE LAST MONTH EXTENSIVELY AND SHE -- IN CAMDEN COUNTY WEE OAE HAD 132
IN 2021, 128 IN 2022, 116 IN 2023. WE'VE NEVER DONE IT THAT WAY. THE COURT:
LET ME ASK. DO YOU DISAGREE WITH HIS RECITATION OF WHAT TOOK PLACE.
DID THEY SAY JUDGE, WE WANT TO CALL A WITNESS AND THAT WITNESS WAS NOT ALLOWED TO APPEAR?
KEVIN J. HEIN: NO. OR YES I DISAGREE THAT DID NOT HAPPEN BELOW.
CHIEF JUSTICE RABNER: WHAT HAPPENED BELOW. KEVIN J. HEIN: WHAT HAPPENED
BELOW IS THE DEFENSE SHOWED UP AN WHEN THEY DIDN'T GET DID THE DECISION THEY WANTED THEY
SAID WE WANT TO CALL AN OBJECTION EXPERT WITNESS. JUSTICE WAINER APTER:
WHEN YOU SAY THE DEFENDANT -- YOU'RE SAYING THAT HAPPENED ONLY AFTER THE DECISION WAS
RENDERED. KEVIN J. HEIN: CORRECT. JUSTICE WAINER APTER: AFTER
THE DECISION IS WAS RENDERED THEN THE DEFENDANT SAYS SORRY, I MIGHT WANT TO CALL AN EXPERT.
KEVIN J. HEIN: CORRECT, YOUR HONOR HAB. JUSTICE PIERRE-LOUIS:
THIS WAS DURING THE IN CAMERA CONFERENCE. KEVIN J. HEIN: IT HASN'T BEEN
THE PROPER IN CAMDEN COUNTY TO HAVE AN IN CAMERA CONFERENCE. JUSTICE
PIERRE-LOUIS: WHAT HAPPENED HERE. KEVIN J. HEIN: THIS IS THE FOOIRS TIME
I'M HEARING ABOUT THIS BEING TERMED AS AN IN CAMERA CONFERENCE. THE FIRST TIME I READ
THAT WAS IN THE RESPONSE TO THE ATTORNEY GENERAL'S AMICUS BRIEF. THIS WAS
ALWAYS KNOWN TO BE THE HEARING. IT WAS ON THE NOTICE THAT AUGUST 4TH WAS THE HEARING
AND BY THE DEFENSE'S OWN CERTIFICATION, HE DIDN'T EVEN LOOK AT THE FILE UNTIL SIX OR SEVEN
DAYS BEFORE THE HEARING. HE CALLED OUR OFFICE FOUR DAYS FOR THE HEARING AND ASKED WHAT
OUR POSITION WOULD BE IF HE WAS FOUND TO BE A LEVEL 1 OR A LEVEL 2 AND WITH REGARD TO
COMPETITIVE AN COMPULSIVE AND OUR OFFICE MADE IT CLEAR WHAT IT WAS. THEN THREE
DAYS BEFORE THE HEARING AN OPPOSITION WAS FINALLY FILED IN WHICH CASE HE ASKS FOR A RE
MEDY IN BEING ABLE TO GET AN EXPERT IF THE COURT RULED AGAINST HIM. KEVIN J.
HEIN: THIS IS NOT THE WAY THESE HEARINGS ARE SUPPOSED TO GO. THE STATE DOESN'T OBJECT
TO A REGISTRANT GETTING AN EXPERT BUT THAT NEEDS TO TAKE PLACE BEFORE THE HEARING.
NOW, I ALSO WOULD LIKE TO CLARIFY THE STATE'S QUESTION WITH REGARD TO WHAT IS THE QUESTION
WITH REGARD TO THE. THE COURT: YOU WERE DISCUSSING PART OF THE TRANSCRIPT
FROM AUGUST 4TH OR IS THAT AN OFF THE RECORD DISCUSSION. KEVIN J. HEIN:
IT WAS AN OFF THE RECORD DISCUSSION THAT HAS NOW BEEN MEMORIALIZED IN THE DEFENSE'S AFFIDAVIT
ATTACHED TO THEIR RESPONSE TO THE ATTORNEY GENERAL AMICUS BRIEF. IT IS THE
STATE'S POSITION THAT IT IS CLEAR IN B F F THE APPELLATE DIVISION CASE AS WELL AS THE
STATUTE THAT THE QUESTION ISN'T WHETHER THE CONDUCT WAS COMPETITIVE AND COMPULSIVE AT THE
TIME OF SENTENCING, IT'S AT THE TIME OF THE OFFENSE. AND SO THIS IS A
BACKWARD LOOKING QUESTION AN SO I WOULD LIKE TO ADDRESS REAL BRIEFLY WHAT OUR POSITION
IS WITH REGARD TO CROSS-EXAMINATION OF OUR WITNESS. JUSTICE SOLOMON: MAY
I ASK YOU ONE THING? IF IT'S AN ISSUE OF COMPULSIVE AND REPETITIVENESS AT THE
TIME OF THE OFFENSE, WHAT DIFFERENCE DOES IT MAKE WHAT HAPPENED AFTER THE TIME OF SENTENCING.
HOOIN HOOEN IT MAKES NO DIFFERENCE, YOUR HONOR AND THAT'S EXACTLY WHAT I WAS ABOUT TO
GET TO. IT IS THE STATE'S POSITION THAT BECAUSE THIS IS THE ONLY BACKWARDS
QUESTION THE COURT MAKES AT A MEGAN'S LAW TIER HEARING THAT IT MAKES NO DIFFERENCE WHAT
HAPPENED AFTER THE EVENT AND SO IN THAT WAY, TAKING THIS CASE AS AN EXAMPLE THERE WAS NO
MATERIAL CHALLENGE EVEN WAIVED WITH REGARD TO COMPETITIVE AND REPETITIVE BECAUSE THE BLANK
WHICH IS FORWARD LOOKING AND A PSYCHOSEXUAL EVALUATION THAT TOOK PLACE, I BELIEVE, SOON
BEFORE HE WAS RELEASED FROM PRISON. JUSTICE MICHAEL NORIEGA: IF NO INFORMATION
AFTER THE FACT MAKES ANY DIFFERENCE DOES WHY DOES IT MATTER IF THE STANDARD IS ANY DIFFERENT?
WHY IS THERE ANY NEED TORE THE TAIT TO EVALUATE ANYTHING IF IT IS REALLY
AT THE TIME OF THE OFFENSE AN NO INFORMATION BEFORE AFTER THAT FACT IS RELEVANT.
KEVIN J. HEIN: BECAUSE WE'RE WORKING UNDER THE FRAMEWORK OF THIS HOFFMAN ORDER AND
SO IT'S BEEN DECIDED AND THE WAY THESE HEARINGS VK HAVE BEEN TAKING PLACE IN CAMERA KOUNTD
FOR THE KAM COUNT IS THAT WE NEED TO MAKE THE SHOWING BY CLEAR AND CONVINCING EVIDENCE.
THE SAME AVENUE VEL REPORT THAT ESTABLISHES PREPONDERANCE OF THE EVIDENCE
CAN CERTAINLY, ALSO, ESTABLISH CLEAR AND CONVINCING EVIDENCE OF THE WE DON'T
NECESSARILY NEED ANYTHING IN ADDITION. IN THIS CASE, THE ONLY THIS EVENING
WE SUBMITTED IN ADDITION WAS POLICE REPORTS, TEXT MESSAGESES, EVIDENCE OF THE CASE IN
ORDER TO SHOW AND NONE THE REPETITIVENESS AN COMPULSIVENESS OF THE REGISTRANT'S EASE
INFRACTIONS. WE WOULD ARGUE IN ORDER TO BE ABLE TO CROSS-EXAMINE THE STATE'S
WITNESS THAT THE DEFENSE SHOULD HAVE TO BRING FORTH SOME SHOWING THAT IT IS SUFFICIENT
AN MATERIAL, WHICH COMES DIRECTLY FROM HORN. WE FRANKLY DON'T DISAGREE THAT THE SAME
STANDARD THAT APPLIES IN HORN FOR A SENTENCING HEARING CAN APPLY HERE. HOWEVER,
THE DEFENSE IS IGNORING THE FACT THAT IN HORN THE DEFENSE NEEDS TO DULY CHALLENGE THE
SUFFICIENCY OR ANY MATERIAL ASPECT OF THE CENTER'S REPORT. IT IS NOT A
MATERIAL CHALLENGE TO THE REPORT TO TALK ABOUT WHAT HAS HAPPENED AFTER.
JUSTICE PIERRE-LOUIS: WHAT ABOUT IN CLOSE CASES YOU HAVE THE REPORT, THE A D T C REPORT
AT SENTENCING AND AT SENTENCING THE JUDGE FINDS THAT THE DEFENDANT'S BEHAVIOR IS REPETITIVE
AND COMPULSIVE, MAKES REPRESENTATIONS ON THE RECORD THAT IT IS A CLOSE CASE BUT FINDING
REPETITIVE AND OF COURSE AT SENTENCING THE STANDARD IS THE PREPONDERANCE OF THE
EVIDENCE, IS THAT A CASE WHERE A REGISTRANT WOULD HAVE THE ABILITY TO CHALLENGE THE STATE
JUST PRESENTING THE A D T C REPORT BECAUSE NOW THE STANDARD IS HIGHER, CLEAR AN CONVINCING
AN PRIOR TO THE MEGAN'S LAW HEARING, THERE WAS A REPRESENTATION THAT THIS WAS A CLOSE
CASE, BUT, YOU KNOW, UVEND PREPONDERANCE OF THE EVIDENCE, WE'RE FINDING THIS.
KEVIN J. HEIN: I WOULD SAY SLOENGS THEY -- JUSTICE PIERRE-LOUIS: THE SAME EXACT
REPORT, BUT IT'S CLOSE. KEVIN J. HEIN: RIGHT. IN A CASE LIKE THAT I THINK
THE STATE WOULD BE, YOU KNOW, THERE IS A LOT OF CONSIDERATIONS TO MAKE. I DO AGREE WITH
THE PUBLIC DEFENDER THAT THE STATE CERTAINLY HAS THE DISCRETION TO DECIDE WHETHER TO GO
FORWARD WITH THE REPETITIVE REPETITIVE AND COMPULSIVE FINDING. THERE ARE CASES WHERE
BASED. I WOULD SAY IN A CLOSE CALL LIKE THAT YOUR HONOR, BEFORE THEY CAN
BRING IN A WITNESS TO BE CROSSED EXAMINED WITHOUT PRODUCING AN EXPERT OF THEIR OWN WHICH
I THINK WOULD PROBABLY RUMENT IN OUR PERSON COMING IN, THEY STILL NEED TO DULY CHALLENGE
THE SUFFICIENCY. NOW, I THINK THAT WOULD LOOK LIKE SOMETHING IN THE REPORT
THE ERRONEOUS, SOMETHING IN THE FINDING IS IMPROPER. TO BE PERFECTLY HONEST,
FROM MY PERSPECTIVE YOUR HONORS, IN ORDER TO MEET THAT SHOWING OR THAT MATERIALITY SHOWING
IN ORDER TO CROSS-EXAMINE OUR WITNESS I WOULD THINK 99 TIMES OUT OF A HUNDRED THEY WOULD
NEED THEIR OWN EXPERT. BECAUSE IF IT IS JUST OUR EXPERT UNLESS THEY ARE MAKING A FACIAL
CHALLENGE IN WHICH CASE THEY HAVE TO SHOW SUFFICIENCY AND MATERIAL PROBLEMS, THEN THERE
IS NO CHALLENGE SUFFICIENCY TO CROSS-EXAMINE OUR WITNESS. NOW, IN PREPARATION
FOR THIS HEARING OR ACTUALLY IN PREPARATION FOR MY BRIEF I TRIED TO REACH OUT TO AVENEL
BECAUSE I THOUGHT THIS COURT WOULD BE INTERESTED TO KNOW HOW MANY EVALUATORS THEY HAVE
AND HOW MANY EVALUATIONS THEY DO EVERY YEAR FOR PURPOSES OF PRACTICALITY OF BRINGING THEM
IN ROUTINELY FOR THESE HEARINGS. THEY DIDN'T GET BACK TO ME IN TIME FOR MY BRIEF BUT
I DID RECENTLY GET BACK TO THEM SO I WOULD LIKE TO PROFFER THE COURT, AVENEL ONLY HAS
THREE TIME EVALUATE TORS FOR THE ENTIRE STATE. IN 2021, THOSE VALT YAT TORS CONDUCT 326
IN VIEWS, IN 2022, 580 INTERVIEWS AND IN 2023, 669 INTERVIEWS. NOW, AGAIN
THE STATE IS NOT SAYING THAT BECAUSE THEY ARE CLEARLY VERY BUSY THAT THE DEFENSE IS NEVER
ENTITLED TO EVER CROSS-EXAMINE THEM, BUT THERE SHOULD BE A SHOWING, THERE MUST BE A SHOWING
SUFFICIENT TO RAISE THAT ISSUE. NOW, IN HERE, IN THIS CASE THERE CERTAINLY
WASN'T. AGAIN, FIRST, FOR THE REASON I JUST SAID, THE STATIC 99 AND THE PSYCHOEVALUATION
IN 2019 HAVE NO RELEVANCE TO THE QUESTION OF REP. I HAVE AN COMPULSIVE AT THE TIME THE
OFFENSE WAS COMMITTED. IN ADDITION EVEN IF THEY WERE RELEVANT THE STATIC
99 IN THIS CASE DOESN'T EVEN ILLUSTRATE THIS REGISTRANT'S DANGERNESS BECAUSE OF ITS
OBJECTIVE NATURE. IT DOESN'T TAKE INTO ACCOUNT THE CONTEXT. FOR EXAMPLE,
QUESTION 1 OF THE STATIC 99 ASKS IF THE DEFENDANT IS OVER 60 YEARS OLD BECAUSE I SUPPOSE
WHOEVER WROTE UP THAT ASSESSMENT THERE ARE STATISTICS TO SHOW THAT PEOPLE OVER 60 ARE
LESS LIKELY TO OFFEND. IN THIS CASE THE REGISTRANT WAS IN HIS 70S WHEN HE WAS SEXUAL
LY ASSAULTING HIS GRAND DAUGHTER FOR TWO YEARS. SO IT SEEMS, SUCH A LOW SCORE
WHEN HE ACTUALLY IN PART GOT SUCH A LOW SCORE BECAUSE OF THIS OBJECT I QUESTION THAT HAD
NO RELEVANCE TO THIS PARTICULAR REGISTRANT. IN ADDITION, NO. 5 ON THE STATIC
9 # 9 ASKS WHETHER THERE ANY OTHER CONVICTIONS OR CHARGES OF OTHER VICTIMS IN WHICH CASE
THE ANSWER HERE WAS NO, HOWEVER, THAT WASN'T THE WHOLE STORY. OF COURSE THE REST OF THE
STORY IS THIS DEFENDANT, 30 YEARS EARLIER HAD BEEN SEXUALLY ASSAULTING HIS OWN DAUGHTER.
NO CHARGES WERE FILED BECAUSE THERE WAS NO DISCLOSURE UNTIL AFTER THE STATUTE OF
LIMITATIONS HAD RUN. SO I EVEN IF THERE IS SOME RELEVANCE TO STATIC 99 WITH
THE QUESTION OF REP. PET TEF AN COMPULSIVENESS THIS CASE NONS THAT THAT IS REALLY NOT
A VERY STRONG ARGUMENT IN MANY CASES, PARTICULARLY THIS ONE. TURNING
JUST BRIEFLY TASH DASH UNLESS THERE ARE ANY OTHER QUESTIONS I WILL TURN TO THE AVENEL
REPORT. JUSTICE MICHAEL NORIEGA: IN TERMS OF THE OBJECTION, IT SEEMS TO ME
THAT THE RECORD REFLECTS THAT AT THE HEARING THAT THE REGISTRANT WAS LODGING OBJECTIONS
TO THE SCORE, TO THE DETERMINATION ABOUT WHETHER THE ACTIONS CONSTITUTED FORCE AND WHETHER OR
NOT THAT WAS CORRECTLY CALCULATED AS MODERATE RISK. WEREN'T THESE OBJECTIONS SUFFICIENT
WHEN THE REQUEST WAS FOR A HEARING AND THE JUDGE'S RESPONSE WAS THIS IS YOUR HEARING.
KEVIN J. HEIN: RIGHT. JUSTICE MICHAEL NORIEGA: THERE WERE
NO WITNESSES THERE. THERE WAS NO PREPARATION TO BACKUP THOSE ARGUMENT AT THAT POINT.
WOULDN'T IT BE MORE REASONABLE TO SAY, FINE, LET'S SCHEDULE AN ACTUAL HEARING,
THIS COULD BE OUR CONFERENCE AND THAT WILL BE THE HEARING WHERE YOU CAN BRING WITNESSES
AND LEVY YOUR TAEKS. WOULDN'T THAT BE A BETTER APPROACH IN ORDER TO AVOID WITH WHAT HAPPENED
HERE. KEVIN J. HEIN: TWO RESPONSES TO THAT YOUR HONOR. FIRST,
THESE HEARINGS KIND OF -- IF THE STATE IS SEEKING REPETITIVE AND COMPULSIVE FINDINGS
THERE ARE TWO QUESTIONS THAT ARE ANSWERED, THE FIRST IS THE RISK ASSESSMENT WHICH GOES
TOWARDS WHICH TIER THEY ARE ON AND LEVEL OF NOTIFICATION WITH REGARD TO THE TIER.
THOSE ARGUMENTS THAT YOUR HONOR JUST RAISED I THINK WENT TO THAT QUESTION. WITH
REGARD TO REPETITIVE AND COMPULSIVE THE ONLY ISSUES WERE THE STATIC 99 AND THE
PSYCHOSEXUAL EVALUATION AFTER THE FACT. SECOND, YOUR HONOR, WE, FROM THE STATE'S
PERSPECTIVE WHAT HAPPENED HERE AND THE STATE EMPATHIZE ES, WE ARE ALL PUBLIC ENTITIES
TRYING TO WORK UNDER LIMITED RESOURCES, BUT WHAT APPEARS TO HAPPEN HERE BASED ON THE RECORD
IS THAT THE DEFENSE HOPED FOR AN A RESULT THAT DIDN'T HAVE TO INVOLVE GETTING AN EXPERT
BUT THEN WHEN HE DIDN'T GET IT HE WANTED ANOTHER BITE AT THE APPELLATE L APPLE.
JUSTICE MICHAEL NORIEGA: WHERE DOES THE RECORD REFLECT THAT. KEVIN J. HEIN:
IT'S REFLEBTD IN THE FACT THAT, AGAIN, GOING TO THE AFFIDAVIT THAT WAS SUBMITTED BY THE
PUBLIC DEFENDER, HE HAD SPOKEN WITH OUR OFFICE AND KNEW WHAT OUR OFFICE'S POSITION WAS.
HE KNEW THAT EVEN IF HE WAS FOUND TO BE A RISK 1 THAT WE WOULD STILL BE SEEKING REPETITIVE
AND COMPULSIVE. JUSTICE MICHAEL NORIEGA: I AM SAYING THE OBJECTIONS BEING
MADE AT THAT TIME BEFORE THE JUDGE SAYING WE'RE OBJECTING TO THESE FINDINGS WE WOULD LIKE
A HEARING AND THE JUDGE WENT AHEAD AN MADE THE FINDINGS ANYWAY SO THAT WAS BEFORE THE
RESULTS CAME IN. KEVIN J. HEIN: I COULD BE WRONG AND I WILL DEFER TO YOUR
READING OF THE TRANSCRIPT, BUT IT IS MY RECOLLECTION THAT NO REQUEST FOR A HEARING
WAS MADE UNTIL AFTER THE JUDGE MADE HER INITIAL RULING. I DO THINK SHE EXPOUNDED ON IT
ONCE HE OBJECTED, BUT DEFINITELY FROM MY RECOLLECTION, INDICATED SHE WAS FINDING CLEAR
AND CONVINCING EVIDENCE AND THEN THE OBJECTION WAS RAISED. JUSTICE MICHAEL
NORIEGA: THE ONLY REASON I WOULD PERSIST IS BECAUSE THE JUDGE'S RESPONSE TO THE COMMENT
ARY IN COURT WAS THIS IS YOUR HEARING. THE ONLY LOGICAL EXPLANATION WAS THAT SOMEBODY
HAD ASKED FOR A HEARING AND THE JUDGE RESPONDED THIS IS THE ONLY HEARING YOU'RE GETTING.
KEVIN J. HEIN: OH, UNDERSTOOD, YOUR HONOR. AGAIN, IN CAMDEN
COUNTY THESE HEARINGS. THE COURT'S QUESTION IS A REGISTRANT ENTITLED TO AN EVIDENTIARY
HEARING. JUSTICE MICHAEL NORIEGA: IT IS YOUR POSITION THEY SHOULD HAVE BEEN
PREPARED FOR THAT HEARING WITH WITNESSES AN AN EXPERT AN ERRING SHOULD HAVE BEEN SUBMITTED
AHEAD OF TIME. KEVIN J. HEIN: ABSOLUTELY. JUSTICE MICHAEL
NORIEGA: HAS THAT BEEN DONE. KEVIN J. HEIN: I THINK THAT'S THE ONLY WAY
IT HAS BEEN DONE IN CAMDEN COUNTY TEE. I DON'T THINK THE PUBLIC DEFENDER HAS DONE IT
VERY OFTEN BUT THESE HEARINGS TAKE PLACE AN IT IS THE EXPECTATION IN CAMDEN COUNTY NOW
IF THIS COURT WANTS TO REAFFIRM THE OUTLINE THAT HAS BEEN DISCUSSED, BUT IN CAMDEN COUNTY,
THESE ARE THE HEARINGS AND THEY SHOW UP PREPARED FOR THE HEARING IN WHICHEVER WAY THEY
WANT TO PROCEED. JUSTICE WAINER APTER: AND SO THERE ARE WITNESSES THAT ARE
PRESENTED BY DEFENDANTS AT THE HEARING. KEVIN J. HEIN: I DON'T KNOW HOW
OFTEN OFTEN, BUT THE STATE HAS NEVER AND WOULD NEVER OBJECT TO THAT BECAUSE FROM OUR PER
SPECTIVE THIS IS THEIR HEARING. THIS IS THEIR DAY IN COURT. THEY HAVE GOT NOTIFICATION
OF IT MORE THAN 45 DAYS BEFORE. THIS IS THE DATE. THIS IS WHAT THE STATE IS GOING TO BE
DOING, LODGE YOUR OBJECTION, PREPARE FOR THE HEARING, AN THEN THE HEARING TAKE PLACE.
THAT'S THE WAY CAMDEN COUNTY HAS BEEN DOING IT. JUSTICE PATTERSON:
WHAT IS YOUR UNDERSTANDING OF THE SIGNIFICANCE OF THE OUTLINE IN 2009 THAT WAS SET OUT
IN 2009 AS A SORT OF PARADIGM OF HOW TO HANDLE THESE THINGS PROCEDURALLY. KEVIN
J. HEIN: YOUR HONOR, I'VE SPOKEN WITH OUR MEGAN'S LAW PROSECUTOR AND I WILL CONCEDE THAT
THE WAY THE CONFERENCE LEADING UP TO A HEARING OR WHETHER THERE IS GOING TO BE A HEARING,
THAT IS NOT THE WAY IT HAS BEEN DONE IN KAM COUNT CAMDEN COUNTY. JUSTICE
PATTERSON: WHAT IS YOUR UNDERSTANDING HAVING SEEN ALL THAT. I UNDERSTAND YOU WERE NOT
INVOLVED IN THE HEARING, DO YOU THINK CAMDEN COUNTY SHOULD BE ADJUSTING ITS PROCEDURES
IN ACCORDANCE WITH THAT OUTLINE. KEVIN J. HEIN: THIS IS THE FIRST TIME THAT
THERE HAS BEEN AN ISSUE AS FAR AS I KNOW WITH REGARD TO THIS. CERTAINLY, IN LIGHT OF
THIS CASE, THEN PERHAPS THERE WILL BE SOME CHANGES. THE STATE WOULDN'T
OBJECT, WHETHER THERE IS AN OFFICIAL CONFERENCE OR WHETHER THERE IS COMMUNICATION, WHICH
I BELIEVE HAS ALWAYS BEEN VERY CORDIAL AN VERY EFFECTIVE BETWEEN THE PUBLIC DEFENDER
AND THE PROSECUTOR, MEGAN'S LAW PROSECUTOR, THE STATE WOULD NEVER OBJECT TO A REASONABLE
DELAY IN THE HEARING IN ORDER FOR THE REGISTRANT TO GET AN EXPERT. WE'RE NOT LOOKING
TO PREVENT THE REGISTRANT FROM BEING ABLE TO DEFEND THE CASE THAT THE STATE IS PUTTING
ON FOR CLEAR AN CONVINCING EVIDENCE. SO WHETHER IT'S A FORMAL THAN CAMERA
IN CAMERA CONFERENCE OR COMMUNICATIONS BEHIND THE SCENE DONE BETWEEN PROSECUTOR AND PUBLIC
DEFENDER WHO ARE WORKING TOGETHER WEEKLY, WHO KNOW EACH OTHER VERY WELL, IT'S A SIMPLE
MATTER OF THEY JUST NEED TO BE PREPARED. JUSTICE FASCIALE: IT IS CLEAR
HERE THAT THEY DIDN'T THINK THE CONFERENCE WAS A HEARING, RIGHT? KEVIN J. HEIN:
THEY DIDN'T THINK THE CONFERENCE WAS A HEARING. JUSTICE FASCIALE: WAS A
HEARING. KEVIN J. HEIN: RIGHT. JUSTICE FASCIALE: THEY DIDN'T
GET A HEARING IN OTHER WORDS, THEY DIDN'T HAVE AN OPPORTUNITY TO CHALLENGE. DO YOU
HAVE AN OBJECTION TO A REMAND FOR THAT PURPOSE. KEVIN J. HEIN: IT IS OUR
POSITION THAT THEY DID DPET AN OPPORTUNITY, YOUR HONOR. JUSTICE FASCIALE:
IT IS CLEAR FROM JUSTICE NORIEGA'S QUESTIONS THAT THEY DIDN'T THINK THAT WE'LL -- THEY
CALL IT A CON TRENS YOU CALL IT A HEARING, WHATEVER IT IS, THEY DIDN'T HAVE A CHANCE TO
CHALLENGE WHAT THEY WANTED TO CHALLENGE, RIGHT? IT DIDN'T HAPPEN.
KEVIN J. HEIN: BASED ON OUR EXPERIENCE IN KAMD CAMDEN COUNTY AND OUR INTERPRETATION OF
WHAT HAPPENED ISN'T THAT THEY DIDN'T GET THE OPPORTUNITY, IT IS THAT THEY DIDN'T TAKE
ADVANTAGE OF THE OPPORTUNITY AND THEY'VE NOW REFRAMED IT. JUSTICE WAINER
APTER: IS THE LETTER IN THE RECORD? WHATEVER RECORD THERE IS THIS RECORD
THAT SAID THERE WAS THIS HEARING ON AUGUST 4TH, IS THAT IN THE RECORD AND WHERE?
KEVIN J. HEIN: THE NOTIFICATION LETTER? JUSTICE WAINER APTER: YES.
KEVIN J. HEIN: IT IS. IT IS R P A-13 AND THIS IS ATTACHED TO, I BELIEVE, THE FORMAL PETITION
FOR CERTIFICATION. JUSTICE WAINER APTER: DOES IT SAY SOMETHING LIKE A HEARING
WILL BE HELD ON AUGUST 4TH SO YOU CAN PRESENT EVIDENCE, ETC.. KEVIN J. HEIN:
IT SAYS. JUSTICE PATTERSON: KEVIN J. HEIN: IT'S DATED JUNE
15TH, 2022 AND IT'S ENTITLED NOTICE OF PROPOSED TIER TWO CLASSIFICATION, NOTICE TO COMMUNITY
AN THE INCLUSION IN THE SEX OFFENDER REGISTRY. THE LAST PAGE TALKS ABOUT AND
I BELIEVE THIS IS A FORM, A FORM LETTER. I DON'T THINK THIS IS SOMETHING THAT OUR OFFICE
HAS COME UP WITH, BUT I COULD BE WRONG ABOUT THAT YOUR HONORS. I HONESTLY DO NOT KNOW
FOR SURE. THE LAST PAGE CLEARLY TALKS ABOUT THE HEARINGS, ANY COURT HEARINGS
CONCERNING YOUR OBJECTIONS WILL NOT BE OPEN TO THE PUBLIC. IF YOU ARE CHALLENGING THE
PROPOSED NOTIFICATION, YOU MUST APPEAR AT THE TIME AND PLACE LISTED BELOW, TIME AND DATE,
AUGUST 4TH, 2022. IF YOU DON'T APPEAR THE CASE WILL PROCEED WITHOUT YOU. SO,
IT IS THE STATE'S PERSPECTIVE THAT THIS WAS ALWAYS THE HEARING AND THAT THIS
RECLASSIFICATION OF IT AS MERELY AN IN CAMERA CONFERENCE IS SOMETHING THAT HAS GERM NATD
SINCE THIS APPEAL HAS STARTED AND TAKEN PLACE. THAT BEING SAID, YOUR HONORS
WE ARE VERY COMMAND THAT ANY REMAND WOULD RESULT IN THE SAME RESULT, AGAIN, BECAUSE THIS
REGISTRANT WAS SO CLEARLY COMPULSIVE. HE ADMITTED TO IT HIMSELF IN THE A D T C
EVALUATION. JUSTICE MICHAEL NORIEGA: DO YOU HAVE ANY OBJECTION TO YOUR ADVERS
ARIES POINT ABOUT ENHANCING OR MAKING REQUIREMENTS ABOUT WHAT THAT NOTIFICATION SHOULD
REQUIRE GOING FORWARD HOOEN HOOEN I THINK IT'S ENTIRELY SUFFICIENT AS IT IS. IF THIS
COURT WANTS TO REQUIRE SOME ADDITIONAL LANGUAGE WE WOULDN'T BE OPPOSED TO THAT BUT IT IS
THE STATE'S POSITION THAT IT IS VERY DETAILED AND HAVE INCLUSIVE OF THE IMPORTANT INFORMATION
WHICH IS THE FACT THAT THE STATE IS GOING TO BE SEEKING INTERNET NOTIFICATION.
JUSTICE WAINER APTER: I'M SORRY, THAT'S WHAT I THOUGHT YOUR ADVERSARY HAD ASKED THAT THE
NOTICE SAY, THE STATE IS SEEKING INTERNET NOTIFICATION AND YOU'RE SAYING IT DID HAPPEN
HERE. KEVIN J. HEIN: ABSOLUTELY. JUSTICE MICHAEL NORIEGA:
BUT YOU WERE PURSUING IT FOR BEING COMPULSIVE AND REPETITIVE FOR THAT SPECIFIC REASON.
KEVIN J. HEIN: IT'S IMPORTANT TO REMEMBER, TOO, THAT ATTACHED TO THE
NOTIFICATION IS THE STATEMENT OF REASON, WHICH IN THIS CASE MADE THAT VERY CLEAR WHERE
IT SAID THE STATE SEEKS INTERNET NOTIFICATION, THIS IS R P A-22 IT SAYS THE STATE SEEKS
INTERNET COMMUNICATION, QUALIFIED FOR THE IN CREST EXCEPTION IN THIS CASE, HOWEVER, DUE
TO HIS STATUS AS COMPETITIVE AND COMPULSIVE AND THE FACT THERE ARE MULTIPLE VICTIMS THAT
OVERCOMES THE PRESUMPTION OF INTERNET NOTIFICATION. IT WAS ALWAYS CLEAR
THAT THE STATE WAS SEEKING A REPETITIVE AND COMPULSIVE FINDING, WHICH IS FURTHER EVIDENT
IN THE AFFIDAVIT RECENTLY SUBMITTED BY THE PUBLIC DEFENDER WHO SAYS HE HAD A CONVERSATION
WITH US AN THIS MEGAN'S LAW PROSECUTOR INDICATED SUCH, THAT WE WERE GOING TO BE SEEKING
THAT EVEN IF THE COURT WERE TO NOT DPRAE WITH THE TIER 2, TO FIND TIER 1, WE WOULD STILL
BE SEEKING THAT WHICH WE WOULD BE PERMITTED TO DO UNDER THE STATUTE SFLFRNLTS OTHER QUESTIONS
ANYONE? ANYTHING YOU WOULD LIKE TO ADD. KEVIN J. HEIN: NO, YOUR
HONOR, WE WOULD JUST ASK THE COURT TO AFFIRM THE LAW. THANK YOU VERY MUCH.
THE COURT: THANK YOU. MS. JUSTUS. LESLIE-ANN M.
JUSTUS: GOOD AFTERNOON. MAY IT PLEASE THE COURT. THE ATTORNEY
GENERAL HERE SUGGESTS A TWO-STEP PROCEDURAL FRAMEWORK WHICH SIMPLY IS A FORMAL
ARTICULATION OR ROAD MAP, IF YOU WILL OF WHAT OCCURS AT THESE MEGAN'S LAW PROCEEDINGS NOW
WITH AN ALLOCATION OF THE VARIOUS BURDEN SPECIFICALLY IDENTIFIED AND A STANDARD TO
WHEN A COURT SHOULD AFFORD REGISTRANT'S IN EVIDENCE SHE HEARING. THE STATE
HAS THE BURDEN OF PERSUASION BY CLEAR AND CONVINCING EVIDENCE AND I WILL NOTE THAT THAT
STANDARD AND THAT BURDEN NOER SHIFT AND THAT'S NOT WHAT THIS TWO-STEP PROCEDURAL FRAMEWORK
IS ATTEMPTING TO DO IN ANY SENSE AND THE STATE WOULD ALSO HAVE THE BURDEN OF GOING FORWARD
WITH PRIMA FACIE EVIDENCE TO JUSTIFY A REGISTRANT'S PROPOSED INITIAL TIER
CLASSIFICATION, SCOPE OF COMMUNITY NOTIFICATION AN BECAUSE OF THE REGISTRANT'S REPETITIVE
AN COMPULSIVE BEHAVIOR AT THE TIME OF THE SEX OFFENSES INTERNET PUBLICATION.
STEP 2 WOULD BE UPON THE PROSECUTOR MEETING THE STATE'S BURDEN AND IF THE PROSECUTOR DOESN'T
MEET HIS OR HER BURDEN, THE CASE IS OVER. BUT, AGAIN, UPON THE PROSECUTOR
MEETING THE STATE'S BURDEN THE REGISTRANT THEN HAS THE BURDEN OF PRODUCTION TO PROVIDE
SUFFICIENT EVIDENCE RAISING A GENUINE ISSUE OF MATERIAL FACT CHALLENGING THE PROSECUTOR
'S PROPOSED HEARING, COMMUNITY NOTIFICATION AND INTERNET PUBLICATION. THIS
FRAMEWORK ALLOCATES THE BURDEN OF PRODUCTION TO A REGISTRANT TO PRODUCE PROOF WHETHER
IN THE FORM OF RELIABLE HEARSAY, AN AFFIDAVIT OR MERELY AN OFFER OF LIVE TESTIMONY THAT
IS SUFFICIENT TO RAISE A GENERAL ISSUE OF MATERIAL FACT NEGATING A FINDING OF
REPETITIVE AND COMPULSIVE BEHAVIOR. WE SIMPLY WANT THE REGISTRANT TO COME FORWARD WITH
SOME TYPE OF PROFFER THAT IS RELEVANT AND MATERIAL TO THE ISSUES THAT MEGAN'S LAW COURT
MUST MAKE, THE DETERMINES THAT MEGAN'S LAW COURT MUST MAKE. ONLY AFTER MEETING
THIS BURDEN OF PRODUCTION SHOULD THE MEGAN'S LAW COURT CONVENE A FULL EVIDENTIARY HEARING
IF THE COURT FINDS WITHIN ITS DISCRETION, LIVE TESTIMONY IS WARRANTED. THIS
FRAMEWORK AFFORDS THE REGISTRANT PROCEDURAL DUE PROCESS WHILE ENSURING THAT GENERAL DENIALS,
VAGUE OR BASE LESS OBJECTIONS DO NOT UNDULY DELAY INTERNET PUBLICATION. THE
ATTORNEY GENERAL BY SUGGESTING THIS FRAMEWORK IS NOT TRYING TO PREVENT A REGISTRANT FROM
BLANK ANY EVIDENCE IN HIS DEFENSE IN A FINDING OF REPETITIVE AND COMPULSIVE BEHAVIOR.
WE ARE SIMPLY SAYING HE MUST RAISE IT TO APPLY TO THE PROSECUTOR AS WELL AS THE COURT
WHAT THE ISSUES ARE TO BE DECIDED. IT IS JUST A SLIGHT BURDEN THAT HE HAS.
AND HE MUST RAISE MATERIAL FACTS TO REBUT THE PROSECUTOR'S -- THE PROSECUTOR'S POSITION
THAT HE IS REPETITIVE AND COMPULSIVE. I INVITE QUESTIONS OF THE COURT.
THE COURT: CAN YOU APPLY THAT TO THIS CASE? WHAT WOULD THE REJ STRAPT'S
ATTORNEY HAVE TO HAVE DONE IN ORDER TO GET A HEARING? LESLIE-ANN M. JUSTUS:
HE SHOULD HAVE ADVISED THE COURT THAT HE WANTED TO CROSS-EXAMINE THE EVALUATE ORS, THE
AVENEL EVALUATE ORS REPORT BUT HE WOULD HAVE TO DULY CHALLENGE IT IN TERMS OF SUFFICIENCY
OR CHALLENGE SOME MATERIAL FACT OR CONCLUSION. THE COURT: THAT'S WHAT I
MEAN. WHAT WOULD HE HAVE TO DO IN ORDER TO SHOW EITHER OF THOSE THINGS TO
CHALLENGE SUFFICIENCY OR TO -- LESLIE-ANN M. JUSTUS: RIGHT. IN TERMS OF
THE AVENEL REPORT, THE FIRST REPORT, THE ATTORNEY WOULD HAVE TO SAY THAT THERE IS SOME
FACTUAL PROBLEM WITH WHAT THE REPORT WRITER WROTE OR THAT THERE WAS SOMETHING WRONG WITH
THE CONCLUSIONS IN TERMS OF FIENDING THAT R S WAS COMPETITIVE AND XRULS S-BUT R.S. MADE
STATEMENTS TO THE EVALUATE TORE SHOWING THAT HEEFLS COMPULSIVE AND REP. PET TEF BY STATING
THAT HE SEXUALLY ASSAULTED HIS GRAND DAUGHTER OVER A TWO-YEAR PERIOD AND HE WANTED TO
-- HE FELT GUILTY AFTER DOING SO, BUT HE COULDN'T HELP HIMSELF. HE ALSO ADMITTED
THAT HE HAD A SEXUAL AT TRACKS TO ADOLESCENT FEMALES. THESE ARE ADMISSIONS BY R.S. THAT
HE IS REPETITIVE. THAT HE WAS REPETITIVE AND COMPULSIVE AT THE TIME OF THE SEX OFFENSES
AND IT'S R.S. WHO ALSO ADMITS THAT 30 YEARS PRIOR HE SEXUALLY ASSAULTED HIS DAUGHTER OVER
A TWO-YEAR PERIOD. SO HE WOULD HAVE TO LOOK AT THE STATE'S EVIDENCE AND SPECIFY
WHAT HE WAS CHALLENGING AND WHAT THE EXPERT THAT HE WANTED TO HIRE, PERHAPS, WOULD COME
IN AND THAT EXPERT WOULD HAVE TO ADDRESS HIS BEHAVIOR AT THE TIME OF THE SEX OFFENSES.
CHIEF JUSTICE RABNER: WHAT ABOUT IF THE REQUEST WERE TO CROSS-EXAMINE THE
STATE'S EXPERT? LESLIE-ANN M. JUSTUS: WELL, THAT'S WHAT I MEAN HE WOULD
HAVE TO -- THE COURT: WHAT IF HE WANTED TO BRING. LESLIE-ANN M.
JUSTUS: I'M SORRY I'M NOT FOLLOWING YOU. THE COURT: I MIGHT HAVE MISUNDERSTOOD.
THEN THE QUESTION IS HOW MUCH DO THEY HAVE TO REVEAL OF WHAT THEIR CROSS-EXAMINATION
WOULD BE IN ORDER TO DEMONSTRATE THAT THERE IS A MATERIAL ISSUE WITH THE CONCLUSION JAUS.
LESLIE-ANN M. JUSTUS: ARE YOU TALKING ABOUT THE AVENEL EVALUATE TORE?
CHIEF JUSTICE RABNER: YES. LESLIE-ANN M. JUSTUS: HE WOULD HAVE
TO DULY CHALLENGE THE SUFFICIENCY OF WHAT THE VALT TORE SAID OR POINT TO MATERIAL FACTS
OR CONCLUSIONS THAT WERE ERRONEOUS. THAT HE BELIEVES ARE ERRONEOUS. CLOP VALT OR VAULT
OR. JUSTICE MICHAEL NORIEGA: WOULD THE STATE SIMPLY BE ARGUING BY THE ATTORNEY
THE CHALLENGING THE FINDING OF COMPULSIVENESS IN THIS CASE AN CHALLENGING WHAT THE EVALUATE
TORE FOUND, WHY WOULD THAT NOT BE SUFFICIENT. LESLIE-ANN M. JUSTUS: BECAUSE
IT DOESN'T HAVE ANY SORT OF SPECIFICITY IN TERMS OF WHAT ASPECT OF THE STATE'S EVIDENCE
IS HE CHALLENGING HERE BECAUSE THE AVENEL REPORT IS -- HAS R.S.'S ADMISSIONS THROUGHOUT
IT ABOUT HIS COMPULSIVE AND REPETITIVE BEHAVIOR AND THESE ARE STATEMENTS HE IS MAKING
HIMSELF. HE ALSO MADE THESE STATEMENTS IN POLICE REPORTS AN IN THE CONSENSUAL INTERCEPT.
JUSTICE PIERRE-LOUIS: WHAT HAS BEEN A CASE IN WHICH THE REGISTRANT DID NOT
MAKE ANY ADMISSIONS AND THE CONCLUSIONS OF THE EVALUATE TORE AS A D T C ARE THE EVALUATE
TORE'S CONCLUSIONS BASED ON THE INTERVIEW AND AT THE TIME OF THE TIERING, REGISTRANT'S
ATTORNEY MAKES A REPRESENTATION THAT HE OR SHE WANTS TO CHALLENGE THAT EVALUATE TORE'S
DETERMINATION AND CONCLUSION. LESLIE-ANN M. JUSTUS: RIGHT. I STILL
BELIEVE THERE SHOULD BE SOME SORT OF SPECIFICITY AND I WILL GIVE AN EXAMPLE OF WHEN A
REGISTRANT DID PROVIDE SPECIFICITY. THERE IS AN AVENEL REPORT AN THE REGISTRANT
SAID THE EVALUATE TORE DIDN'T LISTEN TO ME AN WAS BIASED AND IN THAT EXAMPLE, THAT IS
ENOUGH. JUSTICE PIERRE-LOUIS: SO THAT'S SPECIFICITY THAT THE EVALUATE TORE
DIDN'T HEAR ANYTHING I SAID, THAT'S NOT TRUE, I DID NOT SAY WHAT THE EVALUATE TORE INDICATED
IN THE REPORT SO I SHOULD BE ALLOWED TO CROSS-EXAMINE THAT PERSON.
LESLIE-ANN M. JUSTUS: THAT'S CORRECT AND THAT DIDN'T HAPPEN HERE. I MEAN, R.S. DIDN'T
SAY HE DIDN'T SAY THESE THINGS. HE DIDN'T CHALLENGE ANYTHING IN THIS REPORT. THESE ARE
HIS OWN STATEMENTS. HE MADE STATEMENTS TO THE POLICE AND IN THE CONSENSUAL INTERCEPT
AS WELL. JUSTICE FASCIALE: JUSTICE SOLOMON: SO I GUESS THEY HAVE
TO EXPLAIN WHAT IN THE REPORT THEY ARE DISPUTING AN THEN THEY WOULD BE ENTITLED TO BRING
THE EXPERT IN AN HAVE THEM CROSS EXAMINED. LESLIE-ANN M. JUSTUS: YES.
JUSTICE SOLOMON: FRANKLY THEY WOULD HAVE TO EXPLAIN WHAT ABOUT THE EVIDENCE
IN GENERAL THEY ARE DISPUTING. WHATEVER EVIDENCE IS GOING TO COME IN THE
REGISTRANT WOULD HAVE TO EXPLAIN WHAT THEY ARE DISPUTING. LESLIE-ANN M. JUSTUS:
CORRECT. JUSTICE SOLOMON: AND THEN THEY MIGHT BE ENTITLED TO THAT EVIDENTIARY
PROCESS WE'RE TALKING ABOUT. JUSTICE PIERRE-LOUIS: JUST SO I AM CLEAR,
SO THE FAMILIAR MR. YOU JUST GAVE WAS A REGISTRANT SAYING THE EVALUATE TORE DIDN'T
LISTEN TO ME AND DIDN'T LISTEN TO ANYTHING I SAID AND YOU INDICATED THAT THAT WOULD BE
ENOUGH. IS THAT YOUR POSITION OR IS IT THAT THE REGISTRANT WOULD HAVE TO POINT
TO SPECIFIC STATEMENTS OR SPECIFIC FACTS IN THE REPORT THAT THEY BELIEVE WAS INACCURATE
LY RECORDED BY THE EVALUATE TORE. LESLIE-ANN M. JUSTUS: I WOULD SAY THAT
THE BURDEN THAT IS PLACED ON THE REGISTRANT ISN'T PARTICULARLY HIGH AND IN MY EXAMPLE
I THINK THAT WOULD SUFFICE. JUSTICE PIERRE-LOUIS: SO IT WOULD HAVE SUFFICED
FOR THE REGISTRANT TO GENERALLY MAKE THE REPRESENTATION THAT THE A D T VALT TORE DID
NOT LISTEN WHAT I HAD TO SAY AND THEIR CONCLUSIONS ARE COMPLETELY INACCURATE.
LESLIE-ANN M. JUSTUS: RIGHT BECAUSE HE'S UNDERMINING A FINDING OF REPETITIVENESS AN
COMPULSIVE TIFT. CHIEF JUSTICE RABNER: DID YOU ALSO SAY IT WOULD BE
SUFFICIENT IF THEY CLAIMED BIAS ON THE PART OF THE EVALUATE TORE. LESLIE-ANN M.
JUSTUS: YES. JUSTICE MICHAEL NORIEGA: JUST TO FOLLOW THE WHOLE THREAD,
THIS MEANS THAT THE REGISTRANT GETS NOTICE, HAS 45 DAYS, WOULD SECURE THEIR WITNESSES OR
WHATEVER EVIDENCE THEY SEEK TO PRESENT AND MAKE A PROFFER AT THAT HEARING TO FIND OUT
IF THEY ARE EVEN GOING TO GET AN EVIDENTIARY HEARING. LESLIE-ANN M. JUSTUS:
THAT'S CORRECT. JUSTICE MICHAEL NORIEGA: BASED ON WHAT WAS PRESENTED HERE,
JUST SIMPLY OBJECTING WE DISAGREE WITH THE XULS CITY OF TRENTON FINDING WE WOULD LIKE
TO HAVE ARN OPPORTUNITY TO CROSS-EXAMINE THE EXPERT THAT WOULD BE SUFFICIENT, THEY WOULD
NOT GET THAT HEARING. LESLIE-ANN M. JUSTUS: WELL, IT IS THE ATTORNEY JENT'S
POSITION THAT WHAT R.S. DID WAS A GENERAL DENIAL. HE SAID I WAS NOT REPETITIVE AND COMPULSIVE
UNDER THE CLEAR AND CONVINCING EVIDENCE STANDARD AND I'M CURRENTLY NOT REPETITIVE AND
COMPULSIVE AND THAT IS NOT ENOUGH. THAT IS A GENERAL DENIAL. HE HAS TO HAVE SOME
SPECIFICITY. HE MUST POINT TO SOMETHING IN THE RECORD THAT HE IS SEEKING TO NEGATE.
JUSTICE WAINER APTER: I HAD NOT THAT JUSTICE NOR SAID REGARDLESS OF WHOEVER IS WAITING
TO TESTIFY AT THE HEARING, THEY WON'T BE ABLE TO TESTIFY ATTORNEY GENERAL'S POSITION THAT
THE DEFENDANT -- I'M SORRY IF THE REGISTRANT BRINGS SOMEBODY TO TESTIFY THEY CAN ALWAYS
TESTIFY EVEN IF THE DEFENDANT DOESN'T MAKE ANY PARTICULAR CHALLENGE TO THE A D T C REPORT
IF THEY HAVE THEIR OWN EXPERT WHO THEY WANT TO COME TESTIFY THAT PERSON CAN ALWAYS COME
TESTIFY AT THE HEARING. LESLIE-ANN M. JUSTUS: IT'S COMMITTED TO THE DISCRETION
OF THE MEGAN'S LAW COURT JUDGE WHO WOULD DECIDE WHETHER TO ALLOW LIVE TESTIMONY OR NOT
AND THE MEGAN'S LAW COURT COULD STATE THIS WITNESS IS NOT GOING TO TESTIFY BECAUSE THERE
IS EVIDENCE IN THE RECORD THAT I CAN LOOK AT SO I DON'T NEED LIVE TESTIMONY.
JUSTICE WAINER APTER: I AM SAYING IF THE DEFENDANT WANTS TO BRING AN EXPERT TO SAY
THIS EVIDENCE WAS WRONG AN THE EVALUATION FROM THE A D T C WAS WRONG FOR ALL OF THESE REASONS
THE DEFENDANT ALWAYS CAN DO THAT. LESLIE-ANN M. JUSTUS: YES, YES.
JUSTICE WAINER APTER: YOU'RE SAYING IF ALL THE DEFENDANT WANTS TO DO IS CROSS-EXAMINE
THE A D T C EVALUATE TORE IN ORDER TO DO THAT THEY HAVE TO POINT OUT SOME FLAW IN THE
EVALUATE TORE'S REPORT, EVEN SOMETHING LIKE, THE EVALUATE TORE IGNORED EVERYTHING I SAID
AND WAS BIASED GENSZ ME. CHIEF JUSTICE RABNER: IS BIAS ALONE AN APPROPRIATE
STANDARD? I COULD IMAGINE A SITUATION WHERE AFTER ONE OR TWO INDIVIDUALS
ASSERTED THAT AND GOT A HEARINGS MANY WOULD FOLLOW AND MAKE THAT SAME STATEMENT IS THAT
THE THRESHOLD THAT THE ATTORNEY GENERAL THINKS IS APPROPRIATE? LESLIE-ANN M.
JUSTUS: WELL, LET ME -- WELL, I WOULD CITE TO WHAT THIS COURT STATED IN STATE V. PINK
MAN, CHGS A DETENTION CASE, WHERE THE STATE HAS THE HEAVY BURDEN OF ESTABLISHING GROUNDS
FOR DETENTION BY CLEAR AN CONVINCING EVIDENCE AND THE CRIMINAL JUSTICE REFORM ACT ALLOWS
DEFENDANTS AT PRETRIAL DETENTION HEARINGS TO CALL WITNESSES AND THIS COURT STATED THAT
DESPITE WHAT THE STATUTE SAYS IT'S ONLY A QUALIFIED RIGHT TO CALL WITNESSES AND THIS
COURT SAID BEFORE BEING ALLOWED TO CALL AN ADVERSE WITNESS ON THE ISSUE OF DETENTION, A
DEFENDANT MUST PROFFER HOW THE WITNESS'S TESTIMONY WOULD TEND TO UNDERMINE THE STATE'S
EVIDENCE IN SUPPORT OF A DETENTION IN A MATERIAL WAY. CHIEF JUSTICE RABNER:
THAT'S WHY I WAS ASKING YOU, IS IT ENOUGH TO SIMPLY SAY YOUR HONOR, WE ASSERT BIAS ON
THE PART OF THE EVALUATE TORE. LESLIE-ANN M. JUSTUS: WELL, IF THAT ISSUE
WOULD HAVE TO BE COMMITTED TO THE SOUND DISCRETION OF THE MEGAN'S LAW COURT TO MAKE
THAT DETERMINATION AN IN MY EXAMPLE, THE REGISTRANT SAID THAT THE EVALUATE TORE WASN'T
LISTENING TO HIM SO THAT MAY MEAN THAT THE EVALUATE TORE DIDN'T GET THE FACTS CORRECTLY
OR HE DIDN'T REPORT WHAT THE REGISTRANT SAID ACCURATELY IN THE REPORT AND THEN AS A RESULT
HE WAS BIASED. CHIEF JUSTICE RABNER: QUESTIONS ANYONE? ANYTHING
YOU WOULD LIKE TO ADD, COUNSEL? LESLIE-ANN M. JUSTUS: OTHER THAN THE
ATTORNEY GENERAL REQUESTS THAT THIS COURT AFFIRM THE APPELLATE DIVISION'S DECISION BELOW
AND ADOPT THE SUGGESTED TWO-STEP PROCEDURAL FRAMEWORK. THANK YOU VERY MUCH.
CHIEF JUSTICE RABNER: THANK YOU. CHIEF JUSTICE RABNER: MR.
DUDDY, DID YOU WANT TO OFFER A BRIEF REBUTTAL. FLETCHER C. DUDDY: YES, YOUR HONOR.
CHIEF JUSTICE RABNER: NO MORE THAN FIVE MINUTES. FLETCHER C. DUDDY:
THANK YOU, YOUR HONOR. SO, I KNOW THAT WE CAN DEBATE, AS WE HAVE HOW WE KIND
OF GOT HERE, RIGHT, WHETHER WE CAN TRULY RECONCILE CONNECTICUT WITH THE ANALYSIS IN L
A AN THE ORDER, BUT WE'RE HERE. WE'RE HERE BY VIRTUE OF THE ORDER. AND BEING HERE MEANS
THAT THIS ISSUE DETERMINING WHETHER SOMEONE WAS REPETITIVE AND COMPULSIVE BY CLEAR AND
CONVINCING EVIDENCE SHOULD BE TREATED NO DIFFERENTLY THAN HOW WE TREAT ANY ISSUE IN
THE POST CONVICTION MEGAN'S LAW CONTEXT AN HOW WE TREAT EVERY ISSUE IN THE POST CONVICTION
MEGAN'S LAW CONTEXT IS SIMPLY LOOKING AT HOW THE EVIDENCE TO BE SUBMITTED IS RELEVANT.
A. THIS COMES DIRECTLY FROM THIS COURT IN GB, N J, GOING BACK TO 1996, IS IT RELEVANT
AND WILL IT QUOTE, ASSIST IN THE DISPOSITION OF THE CASE. IT'S JUST THAT SIMPLE. THAT'S
WHY I GAVE THE EXAMPLE BEFORE IF A REGISTRANT WANTED TO GET AN EXPERT REPORT TO SPEAK
TO SOME KIND OF LIKE STATISTICAL RECIDIVISM ABOUT SOME PUBLICATION, THAT WOULDN'T BE RELEVANT
BUT AS LONG AS THE REGISTRANT SAYS I WANT TO GET AN EXPERT REPORT TO ABOUT MY LACK OF
XULS, THAT'S THE LITMUS TEST. THAT CAN ALL BE DISCUSSED OUT AT THE IN CAMERA HEARING.
WHAT THE STATE IS SUGGESTING IN TERMS OF THEIR PROFFER, THEIR TWO STEP PROCESS
THEY ARE ACTUALLY SUGGESTING THAT THE REGISTRANT ESSENTIALLY ARGUE HIS OR HER CASE IN
LOU OF LIEU OF A PROFFER OR IN THE PLACE OF A PROEFR AND GO DOWN THE ADTC.
JUSTICE WAINER APTER: IT DIDN'T SOUND LIKE THAT. IT SEEMS IF THE DEFENDANT COMES IN AND
SAYS I WANT TO BRING AN EXPERT BECAUSE THE A D T C REPORT IS WRONG, THEY ARE SAYING THE
DEFENDANT CAN ALWAYS DO THAT AND THE DEFENDANT SHOULD HAVE DONE THAT HERE AND SHOULD
HAVE BROUGHT THE EXPERT TO THE AUGUST 4TH HEARING BUT DIDN'T. IN TERMS OF IF
THE DEFENDANT COMES IN AND SAYS I DON'T WANT TO BRING A WITNESS, I WANT YOU TO BRING THE
AVENEL EVALUATE TORE IN SO I CAN CROSS-EXAMINE THEM THE STATE SAYS THE DEFENDANT HAS TO
EXPLAIN WHY. THAT SEEMS VERY REASONABLE. FLETCHER C. DUDDY: IN TERMS OF
PROFFERING THEIR OWN EXPERT REPORT, YOUR HONOR, I HEARD IT DIFFERENTLY. IF IT REALLY
IS AS SIMPLE AS I WANT AN EXPERT REPORT NOT TO SPEAK TO STATISTICS NOT THE COMPULSION
THEN WE'RE IN AGREEMENT. A REGISTRANT'S ATTORNEY SHOULD NOT HAVE TO GO
THROUGH THE REPORT, THE NINE-PAGE REPORT. JUSTICE SOLOMON: SHE DIDN'T SAY
THEY HAD TO DO THAT. THEY JUST SAID, POINT OUT IN THE REPORT SOMEWHERE WHERE THERE IS
A MATERIAL ISSUE OF FACT, WHERE THERE IS SOMETHING RELEVANT TO THE DETERMINATION AND
YOU DISAGREE WITH IT, TELL YOU ALSO THAT AND WE'LL BRING HIM IN AND CROSS-EXAMINE HIM.
FLETCHER C. DUDDY: ALL OF THAT MAY ONLY BE RELEVANT OR MANIFEST ITSELF THROUGH
THE CROSS-EXAMINATION. JUSTICE WAINER APTER: WERE YOU JUST SAYING THAT
THE DEFENSE COUNSEL SHOULDN'T HAVE TO READ THE REPORT. FLETCHER C. DUDDY:
NO, NO, I DIDN'T SAY THAT AT ALL. NO. I DIDN'T SAY THAT. WHAT I WAS SAYING IS THEY
SHOULDN'T HAVE TO GO THROUGH THE REPORT PARAGRAPH BY PARAGRAPH POINTING OUT ALL THE AM
BIGUITIES OR ISSUES. JUSTICE WAINER APTER: HOW ABOUT JUST POINTING OUT ONE
ISSUE. FLETCHER C. DUDDY: I WOULD STILL SAY NO. JUSTICE WAINER
APTER: WHY SHOULD THE EVALUATE TORE BE CALLED TO TESTIFY IN PERSON IN EVERY SINGLE CASE
JUST BECAUSE THE DEFENDANT WOULD PREFER THAT THE EVALUATE TORE TESTIFY IN PERSON. THEY HAVE
NO ISSUE WITH THE REPORT. THEY CANNOT ACTUALLY POINT TO ANY ERROR IN IT. THEY BELIEVE
THEY WERE FULLY HEARD. THEY WERE FULLY LISTENED TO. THERE WAS NO BIAS THEY WOULD PREFER
THAT THE EVALUATE TORE COME TESTIFY IN PERSON BECAUSE THEY KNOW THAT IS A HUGE RESOURCE
OUT LAY FOR THE STATE AN ARE HOPING THE STATE WOULD GIVE UP BECAUSE THEY DON'T WANT TO
BRING THE EVALUATE TORE IN. FLETCHER C. DUDDY: A REGISTRANT'S ATTORNEY
MAY NOT WANT TO CALL THE EXPERT IN TO CROSS-EXAMINE HIM OR HER FOR A NUMBER OF
REASONS, PERHAPS OUT OF STRATEGY. IF THEY WANT TO, THE REASON IS THAT THIS IS
A CLINICAL DIAGNOSIS THAT IS COMPLEX AND NUANCED AND THESE ARE THE EXACT REASONS WHY THIS
COURT IN HORN SAID THAT YOU DON'T HAVE TO MAKE THIS PRELIMINARY PROFFER AND POINT OUT
SOME DISCREPANCY OR SOME AMBIGUITY. CHIEF JUSTICE RABNER: ISN'T IT A CASE
BY CASE DETERMINATION? WHEN YOU HAVE ADMISSIONS THAT THERE WAS SEXUAL ABUSE
TAKING PLACE ON A DAILY BASIS OVER EXPEND EXTENDED PERIOD OF TIME. YOU HAVE AN
ADMISSION THAT THE PERSON FELT GUILTY ABOUT THEIR CONDUCT, IS THERE CAUSE IN SUCH A CASE
TO BRING THE EVALUATE TORE IN? FLETCHER C. DUDDY: WELL, YOUR HONOR, ASKED
THIS QUESTION EARLIER AN THE ANSWER I GAVE IS THERE COULD BE A CASE, I DON'T THINK IT'S
THE NORMAL, BUT THERE COULD BE A CASE WHERE IT IS SO CLEAR THAT THIS WAS REPETITIVE AND
COMPULSIVE BY THE HIGHER STANDARD THAT IT WOULD BE FUTILE TO BRING THE STATE'S DOCTOR
IN. IT COULD BE THAT CASE BUT WHAT I AM HEARING AND IF I AM WRONG IS GOING DOWN THIS
ROAD OF HYPER SPECIFICITY, TALKING ABOUT THE STATUS 9 # 9. WHEN I LOOK AT
THIS REPORT, R A 37, WHEN I LOOK AT THIS REPORT IT'S A VERY CONCLUSORY OPINION, DR. FRANK,
MARK FRANK IS SAYING BECAUSE R.S. FELT SHAME AFTER COMMITTING THE UNDERLYING OFFENSE AND
DID IT AGAIN DESPITE THAT SHAME HE'S COMPULSIVE. HE'S COMPULSIVE. I DON'T
SEE IT THAT WAY. HE MAY WELL BE. HE MAY WELL BE. YOU MAY LOOK AT THIS AND
SAY WELL, JUST BECAUSE HE WAS ASHAMED OF WHAT HE DID DOESN'T NECESSARILY MEAN HE DID IT
AGAIN OUT OF COMPULSION MAYBE IT WAS OPPORTUNISTIC OR SOME OTHER REASON.
JUSTICE WAINER APTER: BUT HE DID IT EVERYDAY FOR TWO YEARS. FLETCHER C.
DUDDY: THAT CERTAINLY MAKE IT REPETITIVE, YES. THE OTHER POINT THAT RELATES
TO THIS AND THIS IS KRUSH IS THAT SUBSEQUENT INFORMATION, CRUCIAL IS THAT SUBSEQUENT
INFORMATION, INFORMATION WE LEARN AFTER THE SENTENCING MAY WELL BEAR ON THE UNDERLYING
MOTIVATION. I KNOW THE CAMDEN PROSECUTOR WAS SAYING, THE EXACT QUOTE WAS IT MAKES NO
DIFFERENCE. IT MAKES NO DIFFERENCE. NOW, YOU MAY WELL ARGUE AT THE HEARING
THAT THE REGISTRANT'S THERAPIST OR EXPERT GOT IT WRONG, THAT THE STATIC 99 DOESN'T MAKE
A DIFFERENCE OR THAT THE RAPID COMPLETION OF THERAPY DOESN'T MAKE A DIFFERENCE, YOU ARE
STILL COMPULSIVE, BUT THAT'S THE ARGUMENT THAT TAKES PLACE AT THE HEARING.
JUSTICE WAINER APTER: THEY ARE SAYING THE DEFENDANT CAN ALWAYS BRING IN THAT WITNESS IF
THEY WANT TO AN THERN THEIR WITNESS WOULD APPEAR. BUT. DOES THE
DEFENDANT HAVE TO EXPLAIN WHY, DOES THE DEFENDANT HAVE TO POINT OUT ANY ISSUE WITH THE
REPORT. FLETCHER C. DUDDY: RIGHT. AN WE'RE -- AND IT GETS US BACK TO --
I WOULD SAY NO BECAUSE OF HOW HYPER SPECIFIC THIS ISSUE IS. CHIEF JUSTICE RABNER:
BRING US TO A CLOSE AS YOU ANSWER THIS QUESTION. FLETCHER C. DUDDY: THE
LAST POINT I WILL MAKE IS, THAT IS NOT WHAT THE CAMDEN PROSECUTOR WAS PROPOSING. HE WAS
SAYING BECAUSE THE REGISTRANT'S ATTORNEY POINTED TO THE LOW RISK ON THE STATIC 99 AND
THE RAPID COMPLETION OF THERAPY THAT THOSE WERE REASONS WHY THE REGISTRANT COULD NOT PROFFER
HIS OWN EXPERT REPORT; THAT'S EXACTLY WHAT WAS BEING SAID. THE LAST POINT
I'LL MAKE IS, ELEPHANT IN THE ROOM, THE FACT THAT CAMDEN COUNTY DOES NOT FOLLOW THE ORDER
OF THIS COURT THAT DATES BACK TO 2009 IS NOT SOMETHING, FRANKLY TO BE PROUD OF. IT'S
DISTURBING, YOUR HONOR, AND THE FACT THAT THEY ARE AN ANOMALY AND THEY DON'T DO THIS DOES
NOT RESOLVE THE FRAMEWORK FOR THIS CASE. THEY SHOULD START DOING IT LIKE EVERY OTHER
CASE AND A GOOD EXAMPLE IS MIDDLESEX COUNTY IN OUR BRIEF. THAT IS THE MODEL FOR HOW THIS
WOULD UNFOLD. CHIEF JUSTICE RABNER: THANK YOU,