COUNSEL. SUSAN REMIS SILVER: SUSAN REMIS SILVER WITH THE NEW JERSEY
OFFICE OF THE PUBLIC DEFENDER ON BEHALF OF W.W. TESS BORDEN:
GUILTY YOUR HONOR TESS BORON BEHALF OF AMICUS THE AMERICAN CIVIL LIBERTIES UNION
OF NEW JERSEY. STEPHEN SLOCUM: GUILTY YOUR HONOR DAG STEPHEN
SLOCUM ON BEHALF OF RON, STATE OF NEW JERSEY. THE COURT: GUILTY AND
WELCOME. MS. SILVER PLEASE GO AHEAD. SUSAN REMIS SILVER: GUILTY.
MAY IT PLEASE THE COURT. W.W. IS A 73-YEAR OLD MAN WHO REREMAINS
COMMITTED DESPITE THE FACT THAT THE ONLY PSYCHIATRIST AT HIS HEARING TESTIFIED
THAT HE DOES NOT NEED COMMITMENT. THIS CASE IS LAL VERY STRAIGHTFORWARD W
WGEL HAS A LEGAL RIGHT TO BE RELEASED FROM COMMITMENT BECAUSE THE STATE FAILED TO
COMPLY WITH SECTION 30 OF THE VA SEXUALLY VIOLENT PREDATOR ACT WHICH REQUIRED
PSYCHIATRIC TESTIMONY ON HIS NEED FOR XHIM. TO MY KNOWLEDGE, THIS IS THE
ONLY CASE UNDER THE SVPA WHERE THE STATE'S EXPERT PSYCHIATRIST TESTIFIED THAT A
PERSON DID NOT NEED COMMITMENT REQUIREMENT BUT THE TRIAL COURT STILL DECIDED
TO COMMIT HIM. THIS COURT MUST NOW CLARIFY THAT A TRIAL COURT LACKS THE
AUTHORITY TO FILL IN CRITICAL EVIDENCE GAPS WHEN THE STATE FAILS TO MAKE A
PRIMA FACIE CASE UNDER THE SVPA FOR A PERSON'S COMMITMENT. THE STATE MUST PROVE
THREE ELEMENTS TO COMMIT ANY PERSON UNDER THE SVPA. ONE, THE PERSON HAS
CONVICTION OF A SEXUALLY VIOLENT OFFENSE TWO THE PERSON SUFFERS FROM A MENTAL
ABNORMALITY OR PERSONALITY DISORDER AND THREE, THAT MENTAL CONDITION MAKES A
PERSON HIGHLY LIKELY TO SEXUALLY REOFFEND THE FIRST PRONG IS MET HERE BECAUSE W.W.
HAS ONE CONVICTION FOR A SEX OFFENSE THAT OCCURRED 27 YEARS IN 1993. BUT THE
STATE NEEDED A PSYCHIATRIST TO PROVE THAT W.W. MET THE SECOND AND THIRD
PREREQUISITES FOR COMMITMENT. IN FACT, THE SVPA EXPRESSLY CONDITIONED COMMITMENT
ON THE STATE PRESENTING A PSYCHIATRIST WHO TESTIFIED IN FAVOR OF A PERSON'S
COMMITMENT. SECTION 30 OF THE SVPA USES MANDATORY LANGUAGE
AND SATES THAT A PSYCHIATRIST QUOTE SHALL TESTIFY AT THE HEARING TO THE CLINICAL
BASIS FOR THE NEED FOR INVOLUNTARY COMMITMENT AS A SEXUALLY VIOLENT
PREDATOR". THIS PLAIN LANGUAGE REQUIRES THAT A PSYCHIATRIST TESTIFY IN FAVOR OF
A PERSON'S COMMITMENT. IT IS NOT ENOUGH THAT THE STATE TO ONLY PRODUCE A
PSYCHIATRIST WHO TESTIFIES AGAINST COMMITMENT SECTION 30. SVPA RECOMMENDATION
NIELSES THAT PSYCHIATRIC EXPERTISE IS NEEDED TO MAKE A RISK ASSESSMENT THAT A
PERSON'S COMMITMENT IS NECESSARY. THE TRIAL COURT IN THIS CASE VIOLATED THE
SECTION 30 MANDATE AND ERRED AS A MATTER OF LAW WHEN IT CONTINUED W.W.'S COMMITMENT
WITHOUT ANY PSYCHIATRIST TESTIFYING THAT HIS COMMITMENT WAS NEEDED. THIS COURT
MUST REVERSE BECAUSE IT IS NOT THE COURT'S ROLE THE REWRITE THE COMMITMENT
REQUIREMENTS OF THE SVPA OR TO EXCUSE THE STATE FROM MEETING ITS CLEAR SVPA
OBLIGATIONS. NOT ONLY DOES THE PLAIN LANGUAGE OF THE SVPA REQUIRE PSYCHIATRIC
TESTIMONY IN FAVOR OF COMMITMENT, BUT NEW JERSEY CASE LAW ALSO RECOGNIZES
THAT A COURT CANNOT COMMIT A PERSON UNLESS THE PSYCHIATRIC TESTIFIES THAT A PERSON'S
COMMITMENT IS KNEE HAD. IN COURT IN IN RAY G-W HELD PSYCHIATRIC TESTIMONY
IS NEEDED TO ESTABLISHY THRILL BASIS FOR COMMITMENT THE APPELLATE DIVISION REACHED
THE SAME HOLDING IN BOTH IN RE: CIVIL COMMITMENT OF J-H-M AND IN RE:
CIVIL COMMITMENT OF A-H-C. IN FACT, IN BOTH THE A-H-C AND J-H-M DECISIONS THE COURT
HELD THE PSYCHIATRIST IS THE ONLY PERSON WITH THE TRAINING AS WELL AS THE
KNOWLEDGE FROM PERSONAL INTERVIEWS TO DETERMINE A COMMITMENT IS NECESSARY. HERE,
DR. STAFF WAS THE ONLY PSYCHIATRIST WHO TESTIFIED AT W.W.'S XHIPT CRIME SCENE
SHE CONCLUDED THREE TIMES IN HER TESTIMONY ONCE ON DECK AND TWICE ON CROSS-EXAMINATION
THAT W.W. DID NOT MEET THE THRESHOLD FOR COMMITMENT BECAUSE HE WAS NOT HIGHLY
LIKELY TO COMMIT ANOTHER SEXUAL OFFENSE THE TRIAL COURT MIS-READ THE RECORD WHEN
IT CLAIMED DR. TO THE FOUND IN W.W. IN FACT MET COMMIT REQUIREMENTS BUT
NEED NEEDED DISCHARGE CONDITIONS TO REDUCE RESIST RECIDIVISM RISK THE RECORD PROVES
HER TESTIMONY WAS NOT SO LIMITED. DR. SCOTT ONLY SAYS SHE BELIEVED W.W.
WOULD FULLY COMPLY WITH ANY DISCHARGE CONDITION THAT MIGHT BE IMPOSED GIVEN HIS
EXCELLENT RECORD OF FULL COMPLIANCE WITH ALL STU RULES SHE THOUGHT W.W.
WOULD BENEFIT FROM 54 LOSE WHICH CAN BUILD COMMUNITY SUPPORT AND FROM POLYGRAPHS
WHICH HELP INDIVIDUALS STAY ON TRACK BUT DR. SCOTT CONSISTENTLY FOUND THAT
W.W. DID NOT REACH THE XHIM THEY WERE HOLD BECAUSE HE WAS NOT HIGHLY LIKELY TO
SEXUALLY REOFFEND DR. SCOTT NEVER SAID HE NEEDED DISTINGUISH CONDITIONS TO
SUFFICIENTLY REVIEWS HIS RISK. EVEN IF DR. SCOTT HAD MADE THAT FINDING, W.W. WOULD
STILL BE ENTITLED TO DISCHARGE. THE STATE BURDEN OF PROOF REQUIRES CLEAR AND
CONVINCING EVIDENCE THAT A PERSON IS HIGHLY LIKELY TO SEXUALLY REOFFEND EVEN IN
DISCHARGE CONDITIONS ARE IN PLACE. THE TRIAL COURT IN THIS CASE MADE A FALSE
DISTINCTION BETWEEN THOSE WHO MEET DISTAX TO FALL BEHOLD THE HIGHLY LIKELY
THRESHOLD AND THOSE ALREADY BELOW THAT THRESHOLD THIS DISTINCTION MAKES NO
DIFFERENCE AT ALL BECAUSE A PERSON'S DISCHARGE IS REQUIRED WHENEVER HE FALLS BELOW
THE CONDITIONS WITH OR WITHOUT CONDITIONS IN J-J-F THE COURT HELD THAT A PERSON
IS ENTITLED TO DISCHARGE WHENEVER HIS RISK FALLS BELOW THE COMMITMENT STANDARD
REGARDLESS OF WHETHER DISCHARGE CONDITIONS WERE NEEDED TO SUFFICIENTLY REDUCE
HIS RISK. THIS COURT HELD IN RE: CIVIL COMMITMENT OF R.F. SVPA COMMITMENT
IS LIMITED TO THOSE WHO ARE HIGHLY LIKELY TO SEXUALLY REOFFEND AND THE TERMS OF THE
STATUTE MUST BE STRICTLY MET. DR. SCOTT THE STATE'S ONLY EXPERT PSYCHIATRIST
AT W.W.'S HEARING TESTIFIED THAT HE ALREADY FELL BELOW THAT XHIP THRESHOLD
BECAUSE HE WAS NOT LIKELY HIGHLY TO SEXUALLY REOFFEND WHEN THIS COURT
APPLIES THE TERMS OF THE SVPA W.W.'S DISCHARGE IS REQUIRED. THE TRIAL COURT IN
THEIR APPELLATE DIVISION REACHED THE OPPOSITE CONCLUSION BY EXPLAINING THAT THE
STATE WAS NOT BOUND BY ITS OWN EXPERT PSYCHIATRIST TESTIMONY. BUT THIS IS
TRUE ONLY IN THE LIMITED SENSE THAT THE STATE CAN ALWAYS PRESENT A DIFFERENT EXPERT
PSYCHIATRIST WHO SUPPORTS W.W.'S COMMITMENT ASSUMING HE COULD FIND ONE
BUT THE STATE DID NOT DO SO HERE. TAOENLTY PRESENTED DR. SCOTT AS ITS EXPERT
PSYCHIATRIST AND SHE SAID W.W. DID NOT NEED COMMITMENT UNDER THE SEXUALLY VIOLENT
PREDATOR ACT THE TRIAL COURT ERRED WHEN IT HELD THAT THE STATE MET IT'S BURDEN OF PROOF
BY PRESENTING ANY PSYCHIATRIST EVEN ONE WHO TESTIFIED AGAIN W.W.'S COMMITMENT.
THIS VIOLATED W.W. S RIGHT UNDER SECTION 30 TO AVOID COMMITMENT UNLESS THE STATE
PLENTY A PSYCHIATRIST WHO TESTIFIES IN FAVOR OF HIS CAME. THE STATE CLAIMS
UNDER W.W.'S VIEW OF THE LAW IT'S PSYCHIATRIST WOULD BE IN FULL FORCE TO BE
JUST A MOUTHPIECE FOR COMMITMENT. THAT IS ABSURD. IF THE STATE PSYCHIATRIST
FINDS THAT A PERSON DOES NOT MEET COMMITMENT CRY THE STATE CAN ALWAYS RECOMMEND
DISCHARGE AND IF THE STATE ONLY PRESENT AN EXPERT VISIT WHO TESTIFY THAT
COMMITMENT IS NOT NEEDED, AS DR. SCOTT DID, THE TRIAL COURT MUST THEN ORDER THE
PERSON'S DISCHARGE. THE STATE ALSO ARGUES THAT UNDER W.W.'S VIEW OF THE
LAW, THE STATE COULD NEVER HAVE AGREED TO DISCHARGE AL DISCHARGE IT IS ALSO MAKE
ABSOLUTELY NO SENSE THE STATE CAN ALWAYS AGREE TO A CONDITIONAL CHARGE IN
THE APPROPRIATE CASE AND WHEN THE STATE EVIDENCE DEMONSTRATES THAT A PERSON IS
NOT HIGHLY LIKELY TO SEXUALLY REOFFEND LIKE DR. SCOTT TESTIFIED, THEN THE
TRIAL COURT HAS NO CHOICE BUT TO ORDER HIS DISCHARGE BECAUSE HE NO LONGER MEETS
SVPA COMMITMENT REQUIREMENTS THE STATE FURTHER CLAIMS IT IS ENTITLED TO RELY
ON ONLY A PSYCHOLOGIST TESTIMONY TO COMMIT W.W. THIS IS JUST UNTRUE. NEITHER
THE SVPA'S PLAIN LANGUAGE NOR CASE THERE WAS LOU FOR W.W. TO BE COMMITTED WHEN
THE ONLY WITNESS SUPPORTING HIS COMMITMENT IS A PSYCHOLOGIST WHILE THE STATE
MAY PRESENT OTHER WITNESSES AT THE HEARING, A TRIAL COURT HAS NO
AUTHORITY TO COMMIT UNDER THE SVPA UNLESS THE STATE PRESENT THE PSYCHIATRIST TO
SUPPORT THE NEED FOR THAT PERSON'S COMMITMENT. THE BURDEN OF PROOF HAS TWO
ELEMENTS. THE BURDEN OF PRODUCTS TO PREVENT ENOUGH EVIDENCE TO ESTABLISH A PRIMA
FACIE CASE AND A BURDEN OF PER SITUATING THE TRIER OF FACT IT IS ONLY WHEN THE
BURDEN OF PRODUCTS IS SATISFIED THAT THE ISSUE THEN GOES TO THE TRIER OF
FACT TO WEIGH THE EVIDENCE OF THE UNDER THE SVPA, THE STATE HAS BOTH THE BURDEN
OF PRODUCTION AND BURDEN OF PERSUASION SECTION 29 AND 30 OF THE SVPA PLACE
THE BURDEN OF PRODUCTION ON THE STATE. SECTION 29 REQUIRES NEW JERSEY ATTORNEY
GENERAL TO PREVENT THE STATE'S CASE FOR COMMITMENT TO THE THE COURT AND
SECTION 30 OF THE SVPA ONLY AUTHORIZES COMMITMENT IF THE STATE PRESENTS A
PSYCHIATRIST WHO TESTIFIED IN FAVOR OF THE PERSON'S NEED FOR COMMITMENT. A
TRIAL COURT SERVES BOTH A JUDICIAL ROLE AND TRIER OF FACT ROLE IN SVPA CASES BECAUSE
A PERSON WHO PHASES SVPA COMMITMENT HAS NO RIGHT TO A JURY. BUT THE TRIAL COURT
MISUNDERSTOOD WHEN IT NEEDED TO SERVE A CONTROL. THE MUST SERVE IT'S JUDICIAL ROLE AND FIND WHETHER THE STATE MET ITS BURDEN OF PRODUCTION BY PRESENTING A
THE STATE MUST FIRST PRESENT A PSYCHIATRIST WHO SUPPORTS COMMITMENT BEFORE
THE BURDEN OF PERSUASION EVEN COMES INTO PLAY. IT IS ONLY AT THAT POINT THAT
THE TRIAL COURT CAN ACT AS TRIER OF FACT AND DECIDE WHETHER THE PSYCHIATRIST
PERSUASIVELY TESTIFIED THAT COMMITMENT IS NECESSARY. BUT IT'S A 1-WAY STREET.
THE BURDEN OF PERSUASION IS ONLY AN ISSUE WHEN THE PSYCHIATRIST TESTIFIES THAT
A PERSON NEEDS SVPA COMMITMENT. UNTIL THE STATE MEETS ITS BURDEN OF PRODUCTION
IT IS IRRELEVANT WHETHER OR NOT A TRIAL COURT IS PERSUADED BY THE STATE'S
WITNESSES. THE COURT: I WOULD LIKE TO ASK YOU TO HELP US UNDERSTAND
WHAT HAPPENED TO THE TRIAL COURT LEVEL HERE. DID COUNSEL MAKE A CRISP OBJECTION
AS TO THE ISSUE THAT A PSYCHIATRIST MUST TESTIFY IN SUPPORT AT THE TRIAL COURT
LEVEL? SUSAN REMIS SILVER: YES, YOUR HONOR SHE DID AND SHE
MOVED TO DISMISS BECAUSE THE STATE FAILED TO MEET ITS BURDEN OF PRODUCTION WITH
THE PSYCHIATRIST TESTIMONY IN FACT IF YOU LOOK AT THE FIRST TRANSCRIPT, THE
G AG HAD ARGUED THAT THE PSYCHIATRIST OPINION THAT THIS PSYCHIATRIST DR. SCOTT
WAS NOT EVEN HER WITNESS AND THE TRIAL COURT JUDGE FREEDMAN MAN SAID NO YOU HAVE
TO PREVENT A PSYCHIATRIST IT'S YOUR BURDEN, SHE IS YOUR WITNESS. AND SHE
SAID IN THAT CASE I CALL DR. SCOTT. THE COURT: CAN YOU SHOW US WHERE
THE CRISP OBJECTION THAT I'M LOOKING FOR IS IN THE TRANSCRIPT. CAN YOU
GIVE US THE CITATION. SUSAN REMIS SILVER: I BELIEVE THE VERY END
OF THE HEARING IS WHEN THE TRIAL COURT OBJECTED TO THE LACK OF THE STATE
MEETING IT'S BURDEN OF PROOF. COULD TRY TO PULL UP THE TRANSCRIPT IF YOU JUST
GIVE ME A MOMENT. THE COURT: MS. MAKE NULL I.
SUSAN REMIS SILVER: SHE DID OBJECT. THE SPEAKER: I SEE AN ARGUMENT
ON PAGE 35 THAT I DON'T BELIEVE GOES SQUARELY TO THE ISSUE AND I'M
WONDERING IF THERE'S ANOTHER SPOT. SUSAN REMIS SILVER: I THINK IT WAS.
LET ME SEE IF IT WAS AT THE END OF JANUARY 10TH TRANSCRIPT. ONE POSSIBILITY.
THE COURT: I WAS LOOKING AT JANUARY 20 THIRD.
SUSAN REMIS SILVER: LET ME TAKE A LOOK AT THE JANUARY 23RD TRANSCRIPT. I'M SORRY.
TAKE ME A SECOND HERE. HERE IT IS. THE JANUARY 23RD TRANSCRIPT. IF YOU GO
TO THE END OF THE HEARING, LET ME JUST TAKE A LOOK HERE. OKAY. IF YOU LOOK ON
PAGE 32, STARTING AT LINE 12 THIS IS W.W. TRIAL COUNSEL SAYS YOUR HONOR WE
SUBMIT THE STATE HAS FAILED TO MEET IT'S BURDEN MY CLEAR AND CONVINCING EVIDENCE
TODAY THE W.W. COMMITMENT SHOULD BE CONTINUED THE STATE LAL PRODUCED MARTHA SCOTT
PSYCHIATRIST WHO WAS ACTUALLY IN AGREEMENT THAT MR. W.W. SHOULD START OR
CONTINUE CONDITIONAL DISCHARGE PLANNING. SHE GOES THROUGH IT IN HER CLOSING SAYING
THAT THE STATE HAS NOT MET IT'S BURDEN OF PROOF. AND SO LOOK AT BOTTOM
OF PAGE 33. DR. SCOTT A STATE PSYCHIATRIST SHE FOUND IN HER OPINION TO A
REASONABLE DEGREE OF MEDICAL CERTAINTY THAT W.W. DOES NOT MEET THE THRESHOLD
FOR CONTINUED. THE COURT: SO ONE WAY TO READ THIS ARGUMENT
IS AND I'LL EXPLAIN WHY I'M GETTING TO THIS LINE OF QUESTIONING IN A MOMENT FIRST
I WANT TO UNDERSTAND WHAT HAPPENED ONE WAY TREATED IS THE STATE IS SAYING
BELIEVING DR. SCOTT. SHE'S CREDIBLE. WHICH IF YOU ARE CORRECT AS TO THE THRESHOLD
ISSUE, IS AN ARGUMENT THAT IS NOT AT ALL NEEDED. I UNDERSTAND YOUR POINT
TO BE MAYBE CALL A PSYCHIATRIST WHO TESTIFIED IN SUPPORT OF COMMITMENT, END OF
STORY, END EVER HEARING. DON'T NEED TO GO ON WHETHER THEY WLSHTION THE DR. WAS
CROESHL NOT OR SHOULD YOU ACCEPT HER ANALYSIS. THAT SHOULD BE THE END OF
THE STORY BASED ON YOUR READING OF THE STATUTE CORRECT. SUSAN
REMIS SILVER: CORRECT. THE COURT: THAT'S WHY I'M WILL GO FOR A
CRISP OBJECTION AT THAT VERY POINT ON THE TRIAL COURT LEVEL. IF INSTEAD OF HAVING
YOU SEARCH THE TRANSCRIPT NOW. IF THERE WAS NO SUCH CRISP OBJECTION, AND ASSUME
THAT TODAY LOOKING AT THIS ISSUE WE AGREE WITH YOUR INTERPRETATION OF THE
STATUTE, COULD THAT BEAR ON REMEDY? WOULD IT PERHAPS BE APPROPRIATE THEN TO SEND
THE MATTER BACK AND PERMIT THE STATE TO MEET ITS BURDEN WITH A PSYCHIATRIST
WHO SATISFIES THE TEST THAT YOU PUT FORMING? SUSAN REMIS
SILVER: YOUR HONOR, I BELIEVE THAT THE STATE HAD IT IT'S TURN OPPORTUNITY TO PREVENT
IT'S WITNESS IT KNEW GOING INTO THE HEARING THAT A PSYCHIATRIST DID NOT
SUPPORT W.W.'S COMMITMENT. AT THAT POINT THE TRIAL COURT HAD BOTH OBLIGATION AS
A MATTER OF LAW TO DISMISS THE STATE'S CASE BECAUSE IT DID NOT MEET ITS
BURDEN OF PRODUCTION. THEREFORE DID NOT MEET IT'S BURDEN OF PROOF BECAUSE THE BURDEN
OF PRODUCTION OF COURSE CONSISTS OF BOTH THE BURDEN OF PRODUCTION AND THE
BURDEN OF PERSUASION. THE COURT: HEAR ME OUT. IF THAT WASN'T
CRISPLY IRONED OUT AT THE TRIAL COURT DOES IT HAVE SOME RELEVANCE IN TERMS OF THE
REMEDY THIS COURT MIGHT AFFORD IF WE ACCEPT YOUR LEGAL ARGUMENT TODAY?
SUSAN REMIS SILVER: YOUR HONOR, I BELIEVE THAT IT WAS CRISPLY STATED AND
I COULD QUOTE IT IF YOU GIVE ME ANOTHER MOMENT, I CAN TRY TO FIND A MOST
CONCISE STATEMENT OF THAT. EVEN IN JANUARY 10TH AT THE BEGINNING OF HER TESTIMONY
THERE WAS AN OBJECTION. AND THAT WAS WHEN THE D AG ACKNOWLEDGED THAT THEIR
PSYCHIATRIST DID NOT SUPPORT W.W.'S COMMITMENT AND EVEN CHARACTERIZED DR. SCOTT
NOT BEING THE STATE'S WITNESS AS A RESULT OF THAT POSITION. JUSTICE
LA VECCHIA: AM I INCORRECT IN REMEMBERING THIS, WASN'T THERE A DISCUSSION ABOUT
THE AN ADJOURNMENT FOR THE STATE AND I THOUGHT THE STATE REJECTED THAT
OPTION. AM I MISTAKEN ABOUT THAT? I THOUGHT YOU I SAW THAT EARLIER IN THE
TRANSCRIPT. IN ORDER TO ALLOW THEM TO TIME TO GET ANOTHER PSYCHIATRIST.
SUSAN REMIS SILVER: I DON'T BELIEVE THAT WAS IN THIS CASE YOUR
HONOR I COULD BE MISTAKEN IF YOU LOOK AT THE BEGINNING. JUSTICE LA
VECCHIA: THERE'S NO TOPTION IMPORTANT AN ARGUMENT FOR ESTATE IN THIS MATTER.
SUSAN REMIS SILVER: NO, THE TRIAL COURT DIRECTED THE STATE TO PROCEED
SAID IT'S YOUR CASE YOU HAVE AN OBLIGATION TO PREVENT A PSYCHIATRIST IN FAVOR
OF COMMITMENT. IN THE VERY BEGINNING RIGHT BEFORE DR. SCOTT TOOK THE STAND.
LOOK ON PAVE FIVE. JUSTICE ALBIN: THE STATE WASN'T EVEN GOING TO
CALL DR. SCOTT THEY KNEW DR. SCOTT WASN'T GOING TO BE ABLE TO GET THEM OVER THE
GOAL LINE. AND AT, IT WAS JUDGE FREEDMAN WHO SAID YOU DON'T KNOW CALL A
PSYCHIATRIST, IT'S GAME OVER. AND IT WAS JUDGE FREEDMAN WHO BASICALLY COMPELLED
THE STATE TO CALL DR. SCOTT. AM I CORRECT ABOUT THAT? SUSAN REMIS
SILVER: WELL, THEY NEVER HAD A DIFFERENT PSYCHIATRIST THEY THEY WANTED TO PREVENT
IN THE VERY BEGINNING OF THE JANUARY 10TH HEARING, FIRST W.W. COUNSEL BRINGS
TO THE COURTS THINGS AND TELLS THE JUDGE THAT THIS IS A PROBLEM BECAUSE THE STATE'S
OWN EXPERT TESTIFIED THAT HE DID NOT MEET COMMITMENT. IF YOU GO TO PAGE
LET'S SEE MAYBE TRYING TO LOOK HERE -- IF YOU LOOK ON PAGE 4 OF THE JANUARY 10TH
HEARING, MS. MAKE NULL I W.W.'S TRIAL COUNSEL IS SAYING WHAT THE STATE
PSYCHIATRIST IS STATING AND THE COURT INTERRUPTS AND SAYS I KNOW WHAT THEY'RE STATING
AND GOES ON TO SAY THAT THIS IS THE COURT ON PAGE 5, THE STATUTE REQUIRES
PSYCHIATRIC TESTIMONY. THAT'S THE REQUIREMENT OF THE STATE YOUR PSYCHIATRIST SAYS
THIS MAN SOMEONE REALTOR RELEASED THE D AG ACKNOWLEDGES THAT SO THE TRIAL COURT
UNDERSTANDS THE PROBLEM IN THE BEGINNING AND SAYS GO AHEAD NOW IS YOUR TIME
TO MAKE YOUR CASE. JUSTICE ALBIN: COUNSEL, COUNSEL, DOES IT MAKE
A DIFFERENCE WHETHER THERE WAS A CRISP OBJECTION AS OPPOSED TO AT THE END OF THE
CASE, THE COUNSEL IS ARGUING THERE'S INSUFFICIENT EVIDENCE. YOU CANNOT
COMMIT A PERSON UNDER THE STATUTE UNLESS A PSYCHIATRIST SAYS THAT THE PERSON IS
HIGHLY LIKELY TO REOFFEND OF THE TO TO OFFENSE. AM I MISTAKEN ABOUT THAT?
SUSAN REMIS SILVER: I THINK THAT IT GOES TO THE BEGINNING AND THE END.
IN THE BEGINNING THE STATE HAS THE BURDEN OF PRODUCTION BUT EVEN ASSUMING THEY
MET THAT BURDEN OF PRODUCTION THEN THERE IS A QUESTION OF WAS THERE PERSUASIVE
TESTIMONY BEFORE THE COURT. I DON'T THINK THEY EVEN HAVE TO GET TO A WEIGHING
OF THE EVIDENCE AND ASSESSING THE CREDIBILITY OF WITNESSES BECAUSE THERE WAS NOT
SUFFICIENT EVIDENCE TO PRESENT A PRIMA FACIE CASE THE JUDGE SHOULD AT THE
BEGINNING OR END DISMISSAL. JUSTICE ALBIN: I THINK. IF THE SAME RULE
EMPLOYEES TO CIVIL COMMITMENT ORDER YOU CANNOT GET BY SIMPLY COMMITTING
A PERSON OR UNDER THE SVPA THAT BY HAVING A PSYCHIATRIST SAY THE PERSON SUFFERS
FROM IN GENERAL CIVIL COMMITMENT AMENDMENT DISEASE OR DISORDER YOU CAN'T
SIMPLY COMMIT THE PERSON YOU HAVE TO THEN SHOW THE PSYCHIATRIST HAS TO SAY, AND
THE PERSON POSES A DANGER TO HIMSELF AND TO OTHERS. SUSAN REMIS
SILVER: CORRECT. JUSTICE ALBIN: IT'S THE SAME RATIONALE THAT
APPLIES TO THE SVPA. YOU CAN'T JUST SAY THE PERSON SUFFERS FROM AMENDMENT ABNORMALITY
THAT'S NOT DOING IT IT HAS TO BE A MENTAL ACT ALTERNATE THAT MAKES A PERSON
HIGHLY LIKELY TO REOFFEND. WE HAVE THESE CONDITIONS EITHER UNDER THE CIVIL COMMITMENT
STANDARD OR UNDER THE SVPA, THERE IS THE LACK OF A FOUNDATION.
SUSAN REMIS SILVER: CORRECT. THERE WAS NO FOUNDATION TO SUPPORT THE STATE'S CASE
FOR COMMITMENT IN THIS CASE. THE COURT: SO THE.
JUSTICE PATTERSON: THE STATUTE REQUIRES THAT THE PSYCHIATRIST BE ON A PERSON'S
TREATMENT TEAM AND ALSO THE A PERSON KICKED THE PERSONAL EXAMINATION AS
CLOSE TO THE COURT HEARING AS POSSIBLE THAT'S FIVE-DAY HEARING. THAT WAS IN A
DEALERSHIP MATTER. DO YOU KNOW WHETHER THE STATE HAD OPTIONS AT THE TIME OF
THIS HEARING WITH A DIFFERENT PERSON ON THE, DIFFERENT PSYCHIATRIST ON INDIVIDUAL'S
TREATMENT TEAM. SUSAN REMIS SILVER: I DON'T KNOW WHAT THE STATE
HAD TRIED SEARCHING AROUND FOR ANOTHER EXPERT BUT I DO KNOW THE CASE LAW IN TERMS
TEAM BROAD TOY OTHER PSYCHIATRISTS THAT WORK FOR THE STU EVEN IF THE
PSYCHIATRIST DOESN'T DIRECTLY PROVIDE TREATMENT SERVICES PROVIDE THERE IS THAT PERSONAL
EXAMINATION. JUSTICE PATTERSON: IS IT POSSIBLE UNDER THE
STATUTE TO I'M TALKING ABOUT AN ADJOURNMENT TO ADJOURN A HEARING AND ALLOW FOR A
QUICK EXAMINATION BY ANOTHER MEMBER OF THE STU STAFF WHO HAS A DEGREE IN
PSYCHIATRY. SUSAN REMIS SILVER: THERE ARE CERTAIN TIME RESTRICTIONS
THE PARTIES CAN AGREE TO HAVE A SLIGHT ADJOURNMENT. BUT TYPICALLY YOU HAVE AN
ANNUAL REVIEW HEARING. THE FIVE-DAY RULE IS, ONCE YOU HAVE FIRST YOU HAVE
THE TEMPORARY COMMITMENT THEN THERE'S ACTUALLY A 20-DAY RULE THEN THE FIVE-DAY
RULE COMES EACH ANNUAL REVIEW HEARING THERE'S MANY CASES WHERE THE STATE HAD
ACTUALLY INTERVIEWED YOU SOMEONE BEFORE THAT AND WE HAVE HAVEN'T OBJECTED AS LONG AS
IT'S MORE OR LESS TIMELY. JUSTICE PATTERSON: THAT'S WHAT WE'RE
DEALING WITH HERE MANUAL REVIEW. SUSAN REMIS SILVER: IF HE WAS
AT THE STU FOR 2000 HE'S BEEN THERE 20 YEARS NOW. THE COURT:
DO YOU AGREE THE TRIAL COURT SIMPLY DIDN'T ACCEPT THE THRESHOLD ARGUMENT THAT YOU
ARE MAKING OTHERWISE THE JUDGE WOULDN'T HAVE BEEN ABLE TO ORDER CONTINUED
COMMITMENT? SUSAN REMIS SILVER: I DON'T BELIEVE THE TRIAL
COURT EVEN ADDRESSED THAT THRESHOLD ARGUMENT. HE JUMPED IMMEDIATELY INTO THE TRIER
OF FACT ROLE ASSESSING WITNESS CREDIBILITY LOOKING AT WHETHER HE WAS PERSUADED
BY THE STATE PSYCHIATRIST. BUT AS I EXPLAINED IN THE 1 WAY STREET ARGUMENT, IT'S
ONLY WHEN THE PSYCHIATRIST SUPPORTS COMMITMENT THAT IT THEN BECOMES
RELEVANT WHETHER THE TRIAL COURT FINDS THAT TESTIMONY CREDIBLE OR NOT. BECAUSE
HERE THERE WAS NOT SUFFICIENT EVIDENCE FOR THE STATE TO MEET ITS PRIMA FACIE
OBLIGATIONS. THE COURT: SO YOU'RE ACKNOWLEDGMENT WHICH I THINK
IS CORRECT THAT THE TRIAL COURT DIDN'T GO TO THAT ISSUE WHAT BEGS MY QUESTION WAS
IT SQUARELY PREVENTED BECAUSE THE JUDGE IS SIMPLY SAYING, YOU MUST CALL
A PSYCHIATRIST UNDER THE STATUTE OF THE HE DOESN'T GO TO THE SECOND ISSUE AS TO
WHAT THE PSYCHIATRIST MUST SAY. I DON'T SEE THAT ARGUMENT. AND I'M PRESSING IT
ONLY WITH RESPECT TO THE QUESTION OF REMEDY. SUSAN REMIS
SILVER: UH-HUM. THE COURT: I DON'T SEE IT BEFORE. AND I'M ASKING
FOR YOUR HELP TO SHOW ME PERHAPS AT A LATER POINT IN THE HEARING WHERE THERE WAS
THE CRISP ARGUMENT THAT OFFICER ABLEY MAKING FOR US NOW MADE AT THE TRIAL
COURT LEVEL. DO YOU UNDERSTAND MY QUESTION. SUSAN REMIS SILVER: I
DOENED I THINK YOU CAN FIND IT AT THE BEGINNING WHEN THE TRIAL COURT IS
EXPLAINING THE PSYCHIATRIST OPINION DOESN'T MEET THE THRESHOLD BUT SHE DOESN'T USE
THAT TERM I UNDERSTAND THAT. AND THEN THE TRIAL COURT INITIALSLY GLEES WITH HER
AND SAYS THE STATUTE REQUIRES PSYCHIATRIC TESTIMONY AND HERE'S A PSYCHIATRIST
WHO SAYS THIS MAN SHOULD BE RELEASED. AND SO YES I UNDERSTAND IT IS A PSYCHIATRIST
REGARDLESS OF WHETHER IN FAVOR OR NOT BUT THE TRIAL COURT IS ACKNOWLEDGES
IN THE BEGINNING OF THE HEARING THAT GIVEN WHAT THE PSYCHIATRIST IS SAYING, THAT'S
NOT ENOUGH. SO I THINK THERE'S THAT. THE COURT: BUT THEN THE JUDGE
WOULD HAVE HAD TO RULE IN YOUR FAVOR COULDN'T HAVE CREDITED THE
PSYCHOLOGIST AND ORDERED CONTINUED COMMITMENT I THINK THAT'S A FAIR READING OF THE
TRIAL COURT. SUSAN REMIS SILVER: I THINK YOU NEED TO LOOK AT
THE VERY END OF SECOND DAY OF THE JANUARY 23RD HEARING. LET ME SEE IF I CAN FIND
ANY LANGUAGE THAT SUCCINCTLY PUTS THE PROBLEM BEFORE THE COURT. YOU I WOULD
SAY IT'S ON PAGE 32 WHEN SHE'S SAYING THE STATE FAILED TO MEET ITS BURDEN AND THEN
THAT THE STATE LAL PRODUCED DR. MARK WHO WAS ACTUALLY IN AGREEMENT THAT W.W.
SHOULD START HER CONTINUED CONDITIONAL DISCHARGE PLANNING. JUSTICE LA
VECCHIA: YOUR POSITION IS BASICALLY GIVEN THAT ARGUMENT, AS A MATTER OF LAW THERE
IS INSUFFICIENT EVIDENCE TO JUSTIFY COMMITMENT WITHOUT THE PSYCHIATRIST
HAVING OFFERED THAT TESTIMONY. THERE'S NOTHING THERE FOR THE PERSON TO BE COMMITTED
AND THE PSYCHIATRIST ON THE TREATMENT TEAM WAS A PERSON WHO WAS SAYING THE
PERSON IS NOT POSING A DANGER TO THE COMMUNITY. SUSAN REMIS
SILVER: THAT IS EXACTLY MY ARGUMENT, YOUR HONOR. THE COURT:
SO MY QUESTION RELATES TO THIS. AND THEN I'LL DROP IT IN CASE IT'S ALREADY CLEAR.
HAD, DID THE DEFENSE SAY YOUR HONOR, THE STATE HASN'T MET ITS BURDEN BECAUSE
THEY DIDN'T CALL A PSYCHIATRIST WHO TESTIFIED AND OFFERED CLEAR AND CONVINCING
EVIDENCE OF A NEED FOR CONTINUED COMMITMENT? HAD THAT HAPPENED, COULD
THE STATE HAVE RESPONDED BY SAYING JUDGE GIVE US ANOTHER WEEK. WE WOULD LIKE A
LITTLE ADDITIONAL TIME TO PREVENT AND MEET THAT THRESHOLD QUESTION. DID THAT
HAPPEN? COULD THAT HAVE HAPPENED BASED ON THE BACK AND FORTH THAT TOOK PLACE
HERE? SUSAN REMIS SILVER: I THINK IT WAS ACTUALLY THE OBLIGATION
OF THE THE STATE TO HAVE IT'S SHOT AT THE REVIEW HEARING RATHER THAN COMING BACK
AND CORRECTING THE EVIDENCE GAFS. IT HAS AN OPPORTUNITY ONCE A YEAR TO
REVIEW HIS COMMITMENT STATUS THEY FAILED TO DO SO. D-A GRAND JURY KNEW WHAT THE
PSYCHIATRIST WAS GOING TO SAY BEFORE THE HEARING I THINK THE TIME SHOULD HAVE
BEEN AT THE VERY BEGINNING BEFORE THE ANNUAL HEARING IS HELD TO TRY TO WORK OUT
A SCHEDULING MATTER WITH BOTH W.W. TRIAL COUNSEL AND THE TRIAL COURT TO SAY
I NEED ANOTHER WEEK PUSH IT BACK FOR A WEEK I THINK AT THAT POINT IT WOULD HAVE BEEN
APPROPRIATE BUT ONCE THE YEAR END IS COMPLETED THE STATE FAILS HE IS TO
PROVE HE IS NOT A SEXUAL VIOLENT PREDATOR AT THAT POINT AND IT WAS SAETS OBLIGATION
TO DISCHARGE HIM OR AT LEAST GIVEN THE DISCHARGE PLANNING TO RELEASE HIM WITH
WHATEVER CONDITIONS THEY THOUGHT WERE APPROPRIATE. JUSTICE
ALBIN: DIDN'T THE STATE KNOW THE PROBLEM AT THE BEGINNING THEY HAD SCOTT AND DR.
CANATARO THERE THEY CALLED SCOTT BUT NOT DR. CANATARO AND THEN JUDGE FREEDMAN
QUOTING, SAYS, IT'S YOUR OBLIGATION UNDER THE STATUTE TO PRODUCE PSYCHIATRIC
TESTIMONY: . . IF YOU DON'T DO THAT YOU CAN'T POSSIBLY PREVAIL. THEY RELUCTANTLY
PRESENTED THE PSYCHIATRIC WITNESS WHO COULDN'T DO WHAT THEY WANTED IT TO DO.
SUSAN REMIS SILVER: TRUE AND THAT WAS WHY TRIAL COUNSEL SAID
THE STATE DID NOT MEET IT'S CLEAR AND CONVINCING EVIDENCE BECAUSE BETWEEN THE
STATE'S OWN PSYCHIATRIST IS RECOMMENDING FOR RELEASE WITH CONDITIONAL DISCHARGE
PLAN SO TRIAL COUNSEL DID MAKE THAT ARGUMENT AT THAT POINT IN THE VERY BEGINNING
AS WELL AS AT THE VERY END. JUSTICE LA VECCHIA: EVEN TO ME
JUDGE FREEDMAN DIDN'T ACT OVERTLY WITH HIS WORDS AND RESPOND TO THE ARGUMENT
THAT WAS BEING YOU SAY WAS BEING ADVANCED AND THE POSITION THAT WAS BEING ADVANCED
HIS ACTIONS DID BY MAKING THE STATE GO FORWARD WITH PSYCHIATRIC TESTIMONY
THAT DIDN'T MEET THE THRESHOLD EXPLANATION THAT YOU ARGUE FOR UNDER THE STATUTE,
AND HENCE YOU WERE LEFT AT THE END OF THE CASE ARGUING THE QUANTITY AND
QUALITY OF THE STATE'S EVIDENCE NOT MEETING THE STANDARD FOR COMMITMENT. IS THAT
CORRECT? SUSAN REMIS SILVER: TRUE I THINK THE STATE FAILED
IN BOTH REGARDS IT FAILED TO MEET ITS BURDEN OF PRODUCTION AND PERSUASIVE I CASE
FOR XHIM GIVEN THE OBLIGATION TO PREVENT PSYCHIATRIC TESTIMONY IN FAVOR OF
COMMITMENT. JUSTICE LA VECCHIA: I'M CURE YAUS THERE ARE SO MANY
CASES THAT ARE CITED IMITATING OUR COURT RULES ABOUT THE QUALITY AND QUANTITY OF
EVIDENCE THAT HAS TO BE PRODUCED BY A PSYCHIATRIST UNDER RULE 474, 4 IN
THESE HEARINGS ALL OF IT GOES TO WHAT THE PSYCHIATRIST CAN RELY ONTO SUPPORT THE
OPINION SOMEONE IS IN NEED OF XHIM I CANNOT FIND A SING A CASE THAT EVER
WENT FORWARD THAT ALLOWED PSYCHIATRIC TESTIMONY THAT WAS EVEN EQUIVOCAL ON THE
NEED FOR COMMITMENT AS SATISFYING THE BURDEN OF PRODUCTION.
SUSAN REMIS SILVER: THIS IS THE ONLY CASE TO MY NOVEMBER WHERE THIS HAS HAPPENED.
JUSTICE LA VECCHIA: IN THAT RESPECT, THE APPELLATE DIVISION
WAS SEMINOLE TALKED ABOUT THE QUALITY OF WHAT HAS TO BE IN THE RECORD SAYING THE
STATE EVEN THEIR MOVING THE CASE LIKE THIS DO YOU AGREE. SUSAN
REMIS SILVER: I AGREE I THINK WHERE THE APPELLATE DIVISION WENT OFF TRACK IS SO
I WASN'T BE THERE ARE CREDIBILITY DECISIONS BEING MADE IN WEIGHING OF
EVIDENCE BUT IN THIS CASE THERE WAS A LACK OF A PRIMA FACIE CASE MADE SO THE INQUIRY
SHOULD HAVE BEEN STOPPED AT THE VERY BEGINNING. THE COURT:
ANYTHING ELSE YOU WOULD LIKE TO ADD TO YOUR PRESENTATION. SUSAN
REMIS SILVER: ONLY THAT THE NEED FOR PSYCHIATRIC TESTIMONY IN FAVOR OF COMMITMENT
IS NOT A TECHNICALITY THAT CAN BE OVERLOOKED BY THE TRIAL COURT BUT IS
AN ESSENTIAL PREREQUISITE THAT PROTECTS W.W.'S DUE PROCESS RT TO AVOID THE SIGNIFICANT
LOSS OF LIBERTY THAT COMMITMENT WOULD ENTAIL UNLESS THE STATE PROVES BY
CLEAR AND CONVINCING EVIDENCE THAT MET ALL SVPA CRY FOR COMMITMENT DUE TO THE STATE'S
FAILURE TO MEET IT'S FAILURE OF PRODUCTION THE CASE FOR COMMITMENT MUST FAIL DUE
TO THE FACT THAT THE STATE SIMPLY FAILED TO PREVENT A PSYCHIATRIST TESTIMONY TO
PROVE BY CLEAR AND CONVINCING EVIDENCE THAT W.W. NEEDED COMMITMENT SO W.W.
RESPECTFULLY REQUESTS THIS COURT INTERPRET THE SVPA ACCORDING TO IT'S EXPLAIN
LANGUAGE AND REVERSE THE TRIAL COURT THAT ERRED AS A MATTER OF LAW WHEN IT
COMMITTED W.W. BASED ON THE TESTIMONY OF A PSYCHOLOGIST WHEN THEY ONLY
PSYCHIATRIST THAT IS HEARING TESTIFIED THAT HE WAS NOT HIGHLY LIE LIKELY TO SEXUALLY
RE-59 AND DID MOOT MEET THE REQUIREMENTS FOR COMMITMENT UNDER THE SVPA.
JUSTICE LA VECCHIA: ONE FOLLOWUP QUESTION BEFORE MS. SILVER
RESTS. IS IT YOUR POSITION THAT THE NEED FOR CRISP OPINION BY A PSYCHIATRIST OR
COMMITMENT CIVIL COMMITMENT IS AN ESSENTIAL ELEMENT OF THE DUE PROCESS
FINDING IN ORDER TO SUSTAIN THE STATUTORY SCHEME GOING ALL THE WAY BACK TO DC.
SUSAN REMIS SILVER: YES. JUSTICE LA VECCHIA: THE
STATUTE WAS FIRST PASSED AND THEREAFTER. IN ORDER TO SATISFY THE NOTICE
REQUIREMENT FOR A RESPONDENT IN A CIVIL COMMITMENT PROCEEDING. SUSAN
REMIS SILVER: YES. AND IN THAT REGARD IT'S LIKE THE RECENT DECISION DECISION MADE
IN PD THERE THEY ACKNOWLEDGED DIE PROCESS OF ADVANCE NOTICE REQUIREMENT
TO HAVE STATE EXPERT REPORTS SO WE CAN ADEQUATELY PREPARE A DEFENSE AND IN THIS CASE
THE TRIAL COURT WAS REALLY STEPPING INTO THE ROLE OF A PSYCHIATRIST AND
MAKING PSYCHIATRIC FINDINGS THAT WERE NOT SUPPORTED BY THE RECORD IN THIS CASE
WITH PSYCHIATRIC TESTIMONY OR PSYCHIATRIC REPORTS SO W.W. REALLY HAD NO
ADVANCED NOTICE OF THE INDICATION THAT THE STATE WAS PRESENTING AGAINST HIM. GOING
BACK TO THE U.S. SUPREME COURT, IN KANSAS {CASE CITED}, THEY ACKNOWLEDGE
THAT SVPA COMMITMENT LAWS HAVE TO BE INTERPRETED IN ACCORDANCE WITH DUE PROCESS
REQUIREMENTS AND THIS COURT HAS ALSO MADE THE SAME FINDING IN BOTH THE W-Z
AND R.F. CASES SO IT'S NOT ONLY SOMETHING SUPPORTED BY THE PLAIN LANGUAGE IN CASE
LAW THE SVPA BUT BY W.W.'S FUNDAMENTAL DUE PROCESS RIGHTS TO AVOID AN UNNECESSARY
COMMITMENT WHICH WOULD OF COURSE ENTAIL SIGNIFICANT LOSS OF HIS LIBERTY.
THE COURT: THANK YOU COUNSEL CHIEF JUSTICE RABNER: MS. BORDEN.
TESS BORDEN: GOOD MORNING. I LIKE TO BEGIN WHERE JUSTICE LAVECCHIA
LEFT OFF. I THINK IT IS UNDISPUTED THAT UNDER SECTION 30 JUDGE FRIEDMAN WAS
CORRECT THE STATE DID HAVE TO PUT FORWARD THE TESTIMONY OF THE PSYCHIATRIST. THE
ONLY QUESTION IN THIS CASE IS WHETHER THAT TESTIMONY HAD TO BE IN SUPPORT OF
COMMITMENT. AND REALLY WHAT THAT QUESTION COMES DOWN TO IS WHETHER THE STATE MUST
PRESENT MEDICAL EVIDENCE, THAT IS, EVIDENCE FROM A PSYCHIATRIST WHEN NO SEEKS TO
CONTINUE OR TO EVEN INITIATE A COMMITMENT. I THINK AS A MATTER OF STATUTORY
CONSTRUCTION IT'S QUITE CLEAR, I WON'T REPEAT THE ARGUMENTS FROM OUR BRIEF UNLESS
YOUR HONORS WOULD LIKE ME TO. I'D SIMPLY SAY THAT THE PSYCHIATRIST'S ROLE
IS ESSENTIAL IN SVPA. WE KNOW THAT UNDER SECTION 28 WHERE AT INITIAL COMMITMENT
A PSYCHIATRIST CERTIFICATE MUST SUPPORT THE AG'S CASE. WE KNOW THAT UNDER
SECTION 30 WHERE A PSYCHIATRIST MUST TESTIFY AND WE KNOW THAT UNDER SECTION 35
WHERE THE STATUTE, THE PROCEDURES FOR CONTINUING COMMITMENT AS THE INITIAL
COMMITMENT. I WOULD MOVE ON TO WHY THIS IS NECESSARY AS A A MATTER OF CONSTITUTIONAL DUE
PROCESS. IT'S ALSO SUBSTANTIVE DUE PROCESS AND I WOULD RECALL AGAIN WHEN
MS. SILVER CITED THE CRANE CASE AND BUILDING UPON A CRANE FROM THE U.S. SUPREME COURT.
WHAT WE LEARNED FROM CRAMP IS THAT THE ONLY REASON WE CAN ABIDE POTENTIALLY
INDEFINITE LIFETIME CIVIL COMMITMENT PURSUANT TO SVPA STATUTES IS THAT WE KNOW
THERE IS A MEDICAL GROUND IN IT. CRANE USES THE TERM PSYCHIATRIC DIAGNOSIS
AND HENDRICKS AND CRANE TAKEN TOGETHER TALK ABOUT HOW, I CAN'T REMEMBER, EXCUSE ME
WHETHER IT WAS THE CHIEF OR WHETHER IT WAS JUSTICE ALBIN, I THINK IT WAS
JUSTICE ALBIN WHO SAID IT'S NOT JUST A MENTAL ABNORMALITY OR PERMANENT DISORDER
WE HAVE TO HAVE MEDICAL EVIDENCE THAT THE PERSON WOULD BE UNABLE TO CONTROL
THEIR BEHAVIOR AND WOULD BE HIGHLY LIKELY TO REOFFEND. AS A MATTER OF A PERSON'S
BRAIN CHEMISTRY IS THEY ARE NOT ABLE TO STOP THAT REOFFENSE. THAT IS THE ONLY
REASON WE ABIDE. THIS COURT HAS RECOGNIZE LTD AS A MATTER OF SUBSTANTIVE DUE PROCESS
IT CAN AND IT MUST GO FURTHER EVEN THAN THE LEGISLATURE'S LANGUAGE. WE DID
THAT IN WZ INTERPRETING THE LEGISLATIVE LANGUAGE TO REQUIRE A HIGH LIKELIHOOD AND
SO WE KNOW IN THAT THIRD ELEMENT THAT THE STATE MUST PROVE THAT THE HIGH
LIKELIHOOD INVOKES US INTO DUE PROCESS AND ENSURE THAT NO PERSON HAS THE BURDEN, WITHOUT
A GROUNDING IN MEDICAL SCIENCE IN A PSYCHIATRIC TESTIMONY.
UNLESS YOUR HONORS HAVE A QUESTION THERE I WOULD SIMPLY SAY THAT AGAIN AS A MATTER
OF STATUTORY INTERPRETATION AND AS PROCEDURE AND SUBSTANTIVE DUE PROCESS
SECTION 30 MUST SURELY MEAN THAT THE STATE MUST GO FORWARD NOT ONLY AS A PSYCHIATRIST
WHO TESTIFIES BUT A PSYCHIATRIST WHO TESTIFIES AS TO THE CLINICAL BASIS
REQUIRING COMMITMENT. CHIEF JUSTICE RABNER: QUESTIONS ANYONE?
THANK YOU, MS. BORDEN. MR. SLOCUM. STEPHEN SLOCUM:
GOOD MORNING YOUR HONORS. ONE THE STATE NOOSHGSZ ITS OBLIGATION TO PRESENT A
TESTIFYING PSYCHIATRIST AND TWO, THIS CASE IS UNIQUE. THIS IS THE FIRST AND
ONLY INSTANCE OF THE STATE PRESENTING THE TESTIFYING PSYCHIATRIST AND PSYCHOLOGIST
WHO DISAGREE AS TO THEIR OPINIONS ON RISK. THERE IS NO SYSTEMIC PROBLEM.
ACCORDINGLY THE COURT IS IT NOT NEED TO TAKE ANY ACTION AND RESPECTFULLY SHOULD BE
GIVEN MERE. THE ONLY CONTESTED PRONG IS THE THIRD WHICH IS THE RISK TO
REOFFEND AND THERE IS AMPLE EVIDENCE IN THE RECORD TO SUPPORT THE TRIAL COURT'S
FINDING. THE RECORDS ARE DETAILED. WW'S ON GOING PREOCCUPATION WITH CHILDREN
ACTIVELY REINFORCING HIS SEXUAL DEEF YANCEY EVEN IN HIS '70'S OVERWHELMS TRUCKS
EXPERTS OF SCORES TO REOFFEND. WHAT THIS CASE REALLY COMES DOWN TO IS THE
CAPACITY OF A JUDGE TO HEAR CONFLICTING EXPERT WITNESS, CONSIDER A LARGE RECORD
AND PARSE ALL THAT INFORMATION TO REACH A JUDGMENT. AND VERY SIMPLY THE
APPELLATE DIVISION GOT IT RIGHT THIS COURT WAS CLEAR IN RF THAT THE TRIAL COURT
IS NOT REQUIRED TO ACCEPT ALL OR IN PART OF AN EXPERT'S OPINION IN THE DETERMINATION
OF WHETHER A DEFENDANT IS WARRANTED IS A LEGAL ONE NOT A MEDICAL ONE. THIS IS
PARTICULARLY APT IN SVPA MATTERS BECAUSE TRIAL COURT ARE SPECIALISTS IN
CONTESTED CASES INVOLVED WITH EXPERTS. IF THE COURT WERE TO ACCEPT THE ARGUMENTS
THAT WE ARE LEFT WITH THE QUESTION WHY IS THERE EVEN A JUDGE AT THE HEARING. HOW
CAN WE AGREE WITH APPELLANT AND CONCLUDE THAT THE TRIAL COURT IS BOUND TO
RUB STATEMENT AN EXPERT OPINION. THAT JUST CAN'T BE RIGHT.
HOWEVER, IF THE COURT DETERMINES THAT THE SPECIFIC WITNESS REQUIREMENT WAS BROKEN
IN THIS CASE, THEN IDENTIFYING THE APPROPRIATE REMEDY IS THE KEY ISSUE.
AND FRANKLY THE REMEDY SUGGESTED BY APPELLANT IS UNREASONABLE. THE SVPA DOES NOT
ANTICIPATE ANY SITUATION IN WHICH IS A RESIDENT WHO ABOUT CIVILLY COMMITTED
BE SIMPLY RELEASED TO THE COMMUNITY. THE STATUTE AND ALL CASE LAW SPEAKS TO
CONDITIONAL DISCHARGE DEESCALATION OF THE STRINGS AND CAREFUL OVERSIGHT WITH
DISCHARGE. FURTHERMORE THERE IS NOTHING IN THIS RECORD TO SUPPORT AN IMMEDIATE
RELEASE IN THE COMMUNITY. DR. SCOTT'S TESTIMONY WAS VERY CLEAR THAT EVEN
ON CONDITIONAL DISCHARGE WW REQUIRES A GRADUAL DEESCALATION, SUBSTANTIAL SUPERVISION
AND ANCORA TREATMENT. SHE EVEN IDENTIFIED HER CONCERNS IN WHICH WW HAD BEEN
APPLYING HIMSELF AND I CLOOING WITH THE CONDITIONAL DISCHARGE. IF THE COURT
DETERMINES RELIEF IS NEEDED, THE APPROPRIATE RELIEF WOULD BE A REMAND FOR
A NEW TRIAL OR AT MOST REMAND FOR THE TRIAL COURT AND TO THE PROVIDERS TO INSTRUCT
AN CONDITIONAL DISCHARGE DISCHARGE PLAN TO SAFELYLY REINTRODUCE WW INTO THE
COMMUNITY. NOTWITHSTANDING THE SUGGESTIONS, THE STATE RESPECTFULLY ASKS THIS COURT
TO AFFIRM THE TRIAL COURT'S JUDGMENT AND NOT TO DEVIATE FROM THE MEASURED
PRINCIPLES ARTICULATED IN RF. I WOULD LIKE TO ANSWER TO THE COURT
SPECIFIC QUESTIONS THAT CAME UM. ONE AS TO DID THE PUBLIC DEFENDER MAKE A CRISP
OBJECTION. NO. IT'S SIMPLY NOT IN THE TRANSCRIPT. THE CLOSEST THAT DOES
COME UP IS IN THE SECOND TRANSCRIPT AT PAGE 35 DURING THE CLOSING ARGUMENT. BUT
I'M NOT SPLITTING HAIRS ABOUT WHETHER IT WAS AN INITIAL OBJECTION OR IN THE
CLOSING ARGUMENT JUST TO CLARIFY FOR THE COURT TO ANSWER THE QUESTION.
ADDITIONALLY AS TO WHETHER THERE WAS AN OPTION FROM THE STATE TO ADJOURN AND SEEK
AN ADDITIONAL PSYCHIATRIST, NO. THAT'S SIMPLY DID NOT HAPPEN. THERE'S
NO INDICATION IN THE RECORD. MY INVOLVEMENT IN THIS CASE BACK WHEN AS IT GOING TO
TRIAL I CAN ALSO REPRESENT TO THE COURT THERE WAS NO OPPORTUNITY FOR THAT.
SO AS STATED THE STATE IS -- IT IS THE STATE'S POSITION THAT
ON THIS RECORD THE TRIAL COURT NO SIMPLY BE AFFIRMED. IF THE COURT PLEASE IF THERE
WAS ERROR A REMAND IS THE APPROPRIATE REMEDY. JUSTICE LA
VECCHIA: MR. SLOCUM, IS IT THE ATTORNEY GENERAL'S POSITION THAT THE SVPA SPECIFICALLY
SECTION 30 WOULD MEET CONSTITUTIONAL REQUIREMENTS IF WE WERE TO CERTAINLY
YOUR ARGUMENT THAT THE STATE MERELY PRODUCE THE TESTIMONY OF A PSYCHIATRIST, NOT
THAT IT PRODUCE THE TESTIMONY OF A PSYCHIATRIST THAT THE PERSON HAS THE
ABNORMALITY AND THE HIGHLY LIKELY HOOD OF REOFFENDING THAT WE HAVE TYPICALLY BEEN
LOOKING FOR IN THE TESTIMONY THAT THE STATE HAS PRODUCED AT HEARINGS
HERETOFORE? STEPHEN SLOCUM: YES OR NO, YOUR HONOR. AS STATED
THE STATE ACKNOWLEDGES WE MUST PRESENT TESTIMONY BY A PSYCHIATRIST.
JUSTICE LA VECCHIA: THAT'S VERY IMPORTANT THOUGH. ILLICIT NOT WHETHER YOU HAVE
TO PRODUCE A PSYCHIATRIST. I THINK THAT'S ABSOLUTELY CLEAR. DO YOU HAVE
TO PRODUCE A PSYCHIATRIST THAT SAYS THIS PERSON SHOULD BE INVOLUNTARY COMMITTED
AND HERE IS WHY? STEPHEN SLOCUM: IN MART YOUR HONOR THE HERE
IS WHY ABSOLUTELY. THAT'S VERY CLEAR IN THE STATUTE AND IN SECTION 30, SUBSECTION
B THAT IDENTIFIES THE NEED FOR THE CLINICAL BASIS FOR THE NEED FOR A
COMMITMENT. SO ABSOLUTELY. HOWEVER, IT IS THE STATE'S POSITION THAT
THE ULTIMATELY -- THE EXPERT'S ULTIMATE OPINION IS NOT DEFINITIVE. IT'S
NOT THE DECIDING FACTOR. THE TRIAL COURT HAS THE ABILITY TO ACCEPT OR REJECT THAT
OPINION. JUSTICE LA VECCHIA: WHERE DO YOU GET THAT FROM?
I MEAN THERE HAS NEVER BEEN A CASE THAT HAS EVER SUGGESTED THAT THE STATE CAN WALK
IN AND SEEK THE CIVIL COMMITMENT OF SOMEONE NOT EACH BEFORE THE SVPA WAS ON
THE BOOKS, WHERE THEY DID NOT HAVE IN HAND PSYCHIATRIC OPINION THAT SAID
INVOLUNTARY COMMITMENT IS NECESSARY FOR THE PROTECTION OF THE PUBL FOR THIS -- AS AGAINST
THIS INDIVIDUAL. STEPHEN SLOCUM: SO IT IS VERY SPECIFIC
LANGUAGE IN THE STATUTE. THAT IS AT SUBSECTION 30B, WHICH REQUIRES THE
PSYCHIATRIST'S TESTIMONY AT THE INITIAL HEARING REVIEW HEARINGS CALLS FOR -- IT'S
QUOTE, SHALL TESTIFY AT THE HEARING TO THE CLINICAL BASIS FOR THE NEED FOR
INVOLUNTARY COMMITMENT. END QUOTE. THAT LANGUAGE, THE CLINICAL BASIS IS EXCLUDED
FROM THE STATUTE IN SECTION TWO. THAT IS THE DEFINITION SECTION CLARIFYING
THE CLINICAL CERTIFICATES WHICH NEED TO ACCOMPANY A PETITION FOR COMMITMENT.
THOSE CERTIFICATIONS ONLY SPEAK TO THE NEED FOR COMMITMENT MENT. THEY TO
NOT INCLUDE THE LANGUAGE ABOUT CLINICAL BASIS. JUSTICE ALBIN:
I DON'T SEE THE DIFFERENCE. I REALLY DON'T, THE NEED FOR CLINICAL BALZ INCH
BECAUSE MERELY TO HAVE A PSYCHIATRIST TESTIFY THAT SOMEONE SUFFERS FROM A
MENTAL ABNORMALITY MEANS NOTHING UNLESS THE PSYCHIATRIST SAYS THAT THE MENTAL
ABNORMALITY MAKES A PERSON HIGHLY LIKELY TO REOFFEND AND COMMIT ANOTHER SEX
OFFENSE. IT WORKS THE SAME WAY UNDER THE GENERAL CIVIL COMMITMENT STANDARD. YOU CANNOT
COMMIT SOMEONE BY SAYING THEY SUFFER FROM A MENTAL ABNORMALITY OR DECISION.
THEY'RE MILLIONS OF PEOPLE WHO HAVE MENTAL DISEASES OR CONDITIONS WITHOUT THE TIE
THAT THE MENTAL DISEASE OR CONDITION MAKES A PERSON A DANGER TO HIMSELF OR
OTHERS, THE PERJURY CANNOT BE CIVILLY COMMITTED. OUR STATUTES OR AS MS. BORDEN
HAS SAID, UNDER THE CONSTITUTION. AM I MISTAKEN ABOUT THIS?
STEPHEN SLOCUM: NO YOUR HONOR YOU ARE NOT. JUSTICE LA VECCHIA: AND
IN RF THE COURT TALKED ABOUT THE JUDGE BEING GUIDED BY THE MEDICAL EVIDENCE,
NOT SUPPLANTING THE MEDICAL EVIDENCE. SO YOU NEED -- DON'T YOU NEED TO HAVE RIGHT
FROM THE BEGINNING WITH THIS STATUTE, THE MEDICAL OPINION THAT SAYS INVOLUNTARY
COMMITMENT IS NECESSARY PER THE PSYCHIATRIST THAT THE STATUTE REQUIRES TO
TESTIFY AT THESE HEARINGS. NOT ONLY INITIALLY BUT IN EVERY PERIODIC
REVIEW. STEPHEN SLOCUM: SO IN PART, YOUR HONOR, I CERTAINLY
CONCEDE THAT THE STATE MUST PRESENT ITS PSYCHIATRIST, THAT PSYCHIATRIST MUST PROVIDE
THE MEDICAL OPINION AND THE BASIS FOR EACH OF THE PRONGS. HOWEVER, UNDER
THE CASE LAW, THE COURT IS ABLE TO REJECT THOSE OPINIONS. JUSTICE
LA VECCHIA: THEY'VE ONLY REJECTED THEM TO RELEASE SOMEONE WHO IS BEING RECOMMENDED
FOR COMMITMENT, NEVER THE CONVERSE AS YOU HAVE HERE. IN ANY CASE THAT I COULD
FIND. STEPHEN SLOCUM: YES, YOUR HONOR. JUSTICE
ALBIN: YOU CANNOT, YOU DON'T EVEN HAVE TO REJECT AN OPINION WHEN THERE ISN'T SUFFICIENT
FOUNDATION FOR THE OPINION. YOU MENTIONED RF. SO THE FACTS OF RF WERE
THE STATE PRESENTED A PSYCHIATRIST WHO SAID MENTAL ABNORMALITY, HIGHLY LIKELY TO
REOFFEND. THAT WAS THE STATE'S, SO THEY MET THE FOUNDATION THERE.
THEN THE DEFENSE HAD A PSYCHIATRIST THAT SAID, YEAH, MENTAL ABNORMALITY, NOT HIGHLY
LIKELY TO REOFFEND AND IT WAS JUDGE BETTER THAN FLEE AND JUDGE BERNIE SAID
I'M MAKING A CREDIBILITY CALL. I'M GOING WITH THE DEFENSE AND I'M DISCOUNTING
THE STATE. BUT IN THAT CASE THERE WAS NO QUESTION THAT THE STATE HAD AN EXPERT
WITNESS TO ADMIT THE PREREQUISITES OF THE STATUTE AND THAT'S WHAT THE STATE WISHES R
F FROM THIS CASE. AM I MISTAKEN? STEPHEN SLOCUM: YOU ARE
NOT, YOUR HONOR. AND I AM NOT ARGUING THAT WE SHOULD READ THE STATUTE OUT OF
EXISTENCE, AIM A NOT ARGUING WERE WE SHOULD IGNORE THE STATUTORY LANGUAGE. AS
ARGUED IT IS ON THIS SPECIFIC RECORD THERE WAS EVIDENCE IN THE RECORD TO SUPPORT
THE TRIAL COURT'S DECISION, HOWEVER, TO THE EXTENT THAT THAT THRESHOLD ISSUE JUST
THE THRESHOLD ISSUE OF THE MINIMUM EVIDENCE COMING IN WITHOUT REGARD TO
CREDIBILITY WITHOUT REGARD TO SUBSTANCE OF IT, TO THE EXTENT THE COURT WILL BELIEVE
IT'S NECESSARY THERE, THE APPROPRIATE RELIEF IS A, REMAND FOR A NEW TRIAL OR
WITH DIRECTION TO ESTABLISH CONDITIONAL DISCHARGE CHARGE PLAN. CHIEF
JUSTICE RABNER: I'D LIKE YOU TO REPEAT SOMETHING YOU SAID EARLIER. I WANT TO MAKE
SURE I UNDERSTOOD. WHAT MUST THE PSYCHIATRIST PRESENT AT THE HEARING.
STEPHEN SLOCUM: THE PSYCHIATRIST MUST TESTIFY THAT THE
CLINICAL BASIS OF THE NEED FOR COMMITMENT. CHIEF JUSTICE RABNER:
WHAT DOES THAT MEAN WITH RESPECT TO THE THREE ELEMENTS? STEPHEN
SLOCUM: THE MEDICAL TESTIMONY AS THE ACLU HAS INDICATED, THE MEDICAL TESTIMONY
OF A MEDICAL BASIS FOR THAT EXPERT'S OPINIONS. SO THAT IS --
CHIEF JUSTICE RABNER: GO AHEAD. STEPHEN SLOCUM: THANK YOU,
CHIEF. WHEN IT GOES TO THE SAME PROHIBITION ON NET OPINION A
PSYCHIATRIST WHO COMES IN AND SAYS I DIAGNOSE PEDESTRIAN FEEL YA END OF STORY OBVIOUSLY
CANNOT APPLY. THAT'S PUTTING THE EMPHASIZE ON THE CLINICAL BASIS IT'S
THE NEED FOR THE FOUNDATION AND FOR THE EXPLANATION FOR HOW THAT OPINION IS
REACHED. THAT IS WHAT IS KEY. CHIEF JUSTICE RABNER: DOES THE
PSYCHIATRIST HAVE TO FRENT A BASIS FOR THE COURT TO FIND THAT AS A RESULT OF THE
PERSON'S DISORDER IT'S HIGHLY LIKELY THAT HE OR SHE WILL REOFFEND? SLOE MY
ARGUMENT, YOUR HONOR, IS THAT THE LANGUAGE OF THE STATUTE EMPHASIZES THE CLINICAL
BASIS. HOWEVER I AM NOT GOING TO TRY TO ARGUE TO THE COURT THAT WE SHOULD
IGNORE THE STATUTE OR READ THE STATUTE OUT OF EXISTENCE. IF THAT ANSWERS YOUR HONOR'S
QUESTION. CHIEF JUSTICE RABNER: I'M NOT SURE.
JUSTICE ALBIN: YOU'RE TREADING THE NEEDLE. THE CHIEF JUSTICE IS ASKING YOU WHETHER OR
NOT THE CLINICAL BASIS OF THE OPINION MUST ALSO INCLUDE THAT THE COMMITTEE
IS HIGHLY LIKELY TO REOFFEND? SLOE I'M SORRY FOR THE TYPICAL LAWYER ANSWER OF
YES AND NO. BUT I DO BELIEVE IT COMES TOWN TO THERE IS A LEGITIMATE AND A
VALID ARGUMENT THAT THE STATUTE ALLOWS FOR THE EMPHASIS TO BE ON THE MEDICAL TESTIMONY
AS AS OPPOSED TO THE ULTIMATE OPINION. JUSTICE LA VECCHIA: DOESN'T
THE EXPERT ALSO PEAK TO THE RRAS SCORING AND LOOKING AT ALL THE OTHER ELEMENTS
OF THE LIKELIHOOD OF RECIDIVISM. WE TALKED ABOUT THIS IN THE PAST CASE. THAT'S
WHAT GOES INTO THE EXPERT OPINION WE EXPECT TO SEE PRODUCED BY THE STATE
IN THE PRESENTATION OF ITS CASE IN THESE HEARINGS. DOESN'T THAT GOING TO LIKELIHOOD
OF REOFFEND? IT'S NOT JUST THE FIRST PART. SLOE ABSOLUTELY, YOUR HONOR.
THE RISK ASSESSMENT ANALYSIS IS KEY AND PARTICULARLY KEY IN REVIEW HEARINGS WHEN
PRONG ONE HAS BEEN ESTABLISHED IT'S NEVER REALLY GOING TO CHANGE. PRONG
THREE CURRENT LIKELIHOOD OF RISK TO REOFFEND IS REALLY KEY. THAT'S WHY RISK
ASSESSMENTS ARE SO IMPORTANT. THAT'S WHY THIS CASE IS SUCH A GOOD EXAMPLE
OF WHERE A RISK ASSESSMENT CAN BE SO FLUID. DR. SCOTT EMPHASIZE DOLLARS ALMOST
EXCLUSIVELY WW ALSO AGED AND SHE ACCEPTED THE GENERALITY THAT INDIVIDUALS OVER
AGE-RELATED 60 TEND TO BRING OUT THEIR RISK. JUSTICE ALBIN: YOU'RE
IMPEACHING YOUR OWN WITNESS. YOU'RE TELLING US YOUR OWN WITNESS SHOULDN'T
BE BELIEVED. THE VERY WITNESS, THE PSYCHIATRIST WHO YOU NEED IN ORDER TO MAKE OUT
THE CASE. WHERE IS THAT GETTING YOU? TELLING YOU THAT THE ONE WITNESS THAT THE
STATUTE REQUIRES, THAT YOU PUT ON THE STAND AND PRESENT AN OPINION, YOU'RE
TELLING US IS NOT WORTHY OF BELIEF SLOE IT SIMPLY GOES, YOUR HONOR, TO THE POINT
THAT JUDGE FRIEDMAN, BASED ON DR. CANATARO'S CONFLICTING EXPERT OPINION
THERE WAS AMPLE EVIDENCE THAT TRIAL COURT'S CONCLUDE THAT DR. SCOTT'S TESTIMONY
AS TO PRONG THREE WASN'T CREDIBLE. ENTITY. CHIEF JUSTICE
RABNER: WHAT DID DR. SCOTT SAY ON PRONG THREE? SLOE IT'S DETAILED IN HER REPORT
APPENDIX PAGE 102. SHE EMPHASIZES NEARLY EXCLUSIVELY WW'S AGE AND, AGAIN,
THAT IS THE GENERALITY THAT THE INDIVIDUALS OVERAGE 60, IT DETERMINES
REFERRING OUT. AND SHE IMMEDIATE THE GENERALITIES, WW JUST AS A MATTER OF
COURSE. DR. CANATARO WAS GOING INTO DETAIL WHY IT DOES NOT APPLY TO WW. SHE
EMPHASIZED AS RECENTLY AS TWO MONTHS BEFORE THIS HEARING HE WAS ACTIVELY
MASTURBATING TO FANCY VICTIMS READ ENFORCING HIS DEEF YANTS OVER A DECADE, WW WAS
THE EXACT OPPOSITE. JUSTICE ALBIN: DR. SCOTT'S TESTIMONY WAS MUCH
MORE DETAILED THAN I THINK YOU'RE SUGGESTING. CHIEF JUSTICE RABNER:
MAY I? DR. SCOTT TESTIFIED THE LIKELIHOOD OF HIM COMMITTING ANOTHER SEX OFFENSE
DOES NOT MEET THE THRESHOLD OF HIGHLY LIKELY SLOE YES, YOUR HONOR YOUR HONOR THAT WAS
THE DOCTOR'S TESTIMONY. CHIEF JUSTICE RABNER: SO IT SOUNDS
LIKE DR. SCOTT DID NOT SATISFY THE THIRD PRONG, RIGHT? STEPHEN
SLOCUM: YES, YOUR HONOR. CHIEF JUSTICE RABNER: IF THE HEARING HAD
ENDED AT THAT POINT, COULD YOU HAVE PREVAILED? STEPHEN
SLOCUM: YES, YOUR HONOR, UNDER RF IT'S CLEAR THAT THE TRIAL COURT IS NOT BOUND BY
AN EXPERT'S OPINION AND MAY ACCEPT OR REJECT -- JUSTICE ALBIN:
BUT RF -- I DON'T WANT TO REALLY BE -- RF SAID THAT THE TRIAL COURT DOESN'T HAVE
TO ACCEPT PSYCHIATRIC TESTIMONY WHERE ALL THREE PRONGS ARE MET. THAT'S
ALL THAT RF SAID. AFTER THE MEDICAL TESTIMONY, THE GROUNDWORK IS LAID, THE COURT
STILL HAS THE ROLE OF DETERMINING WHETHER IT'S CREDIBLE. RF NEVER SAID
THAT YOU CAN ACCEPT PSYCHIATRIC TESTIMONY THAT LACKS AN APPROPRIATE FOUNDATION.
AM I MISTAKEN? STEPHEN SLOCUM: NO, YOUR HONOR. I APOLOGIZE
IF I'M BEING UNFAIR. I AM SEPARATING THE CREDIBILITY DETERMINATION VERSUS THE
FOUNDATION QUESTION. AND SO ON THE KREFSHLT DETERMINATION CERTAINLY THE
TRIAL COURT, THE SAME LOG SKWLIK AS RF APPLIES. WHETHER ACCEPTING THE STATE'S
EXPERT, REJECTING THE STATE'S EXPERT, ACCEPTING THE P D'S EXPERT, IT'S A
CREDIBILITY DETERMINATION FOR A TRIAL COURTS. IT'S THE CREDIBILITY ISSUE FOR THE
FOUNDATION ISSUE AGAIN AS ARTICULATED TO THE EXTENT THE COURT DETERMINES
THAT THE WITNESS REQUIREMENT WAS VIOLATED THE APPROPRIATE REMEMBER DEE WAS.
JUSTICE PATTERSON: THE REMAND AS YOU'RE ESSENTIALLY YOUR SECOND ALTERNATIVE
REMEDY, WHAT DO YOU SEE AS THE STATUTORY BASIS FOR THAT REMEDY IF THERE IS ONE
OR IN THE CASE LAW? STEPHEN SLOCUM: CERTAINLY YOUR HONOR. THE
STATUTE DOES SPEAK TO WHEN AN INDIVIDUAL HAS BEEN THEY MAY ONLY BE DISCHARGED
WHEN THE COURT MAKES A FINDING THAT THE INDIVIDUAL IS NOT HIGHLY LIKELY TO SEX
ACTUALLY REOFFEND AND IS HIGHLY LIKELY TO COMPLY WITH THE TERMS OF A CONDITIONAL
DISCHARGE PLAN. THE STATUTE INCLUDES NO OPTION ANYWHERE IN THE ENTIRE TEXT THAT
AN INDIVIDUAL EVER JUST BE PUSHED OUT THE DOOR, BE ASSUMED YOU'RE NOT GOING TO
REOFFEND, NO OVERSIGHT, MONITORING GOOD LUCK WIN. JUSTICE ALBIN:
I'M NOT CERTAIN THAT YOUR ADVERSARY WOULD ARGUE THAT THERE SHOULDN'T BE AT THE
VERY LEAST A REMAND FOR A CONDITIONAL DISCHARGE PLANK. I DON'T THINK SO.
STEPHEN SLOCUM: YOUR HONOR, TO THE EXTENT THAT OPPOSING COUNSEL
AGREES THAT -- WHETHER IT'S THE APPROPRIATE REMEDY OR AN APPROPRIATE REMEDY
WOULD BE REMAND FOR SUCH A HEARING, THAT I DON'T BELIEVE IT'S NECESSARY.
JUSTICE PATTERSON: YOU'RE NOT SEEKING SIMPLY A REMAND FOR
CONDITIONAL DISCHARGE PLAN, IF I'M CORRECTLY INTERESTING. YOU'RE SEEKING A
REMAND FOR THE STATE TO HAVE TO BE ABLE TO TO HAVE THE OPPORTUNITY TO PRESENT
THE TESTIMONY OF A PSYCHIATRIST WHO IF THIS COURT WERE TO RULE DR. SCOTT DID NOT
MEET THE REQUIREMENTS, AN ALTERNATIVE PSYCHIATRIST, AM I UNDERSTANDING YOU
CORRECTLY ONLY. STEPHEN SLOCUM: YES, YOUR HONOR. THAT IS
CERTAINLY THE STATE'S PREFERENCE WOULD BE THE MOST CANDID WAY TO PUT IT.
JUSTICE PATTERSON: THE SENSE I GOT FROM YOUR BRIEF WAS THAT IN LIGHT OF THIS
INDIVIDUAL'S BACKGROUND, YOU KNOW, INCLUDING AT LEAST A STATEMENT
ATTRIBUTED TO HIM ABOUT POTENTIAL KILLING A CHILD VICTIM THAT THERE IS A CONDITIONAL
DISCHARGE IS NOT GOING TO BE SUFFICIENT TO PROTECT CHILDREN.
STEPHEN SLOCUM: YOUR HONOR, BASED ON THIS RECORD AND THE TESTIMONY PRESENTED AT THIS
POINT TWO YEARS AGO, NO. BUT AT ALL TIME THE REPRESENT THERE ARE REVIEW
HEARINGS IS BECAUSE INDIVIDUALS CHANGE, INDIVIDUALS CAN PROGRESS IN TREATMENT AND
I ACKNOWLEDGE THAT A NEW HEARING NOW COULD HAVE A SUBSTANTIALLY DIFFERENT
RECORD AS TO CURRENT RISK. JUSTICE ALBIN: LOOK, THE STATE HAS
NEVER -- RIGHT NOW BASED ON THIS RECORD ASSUMING THAT IT HAS TO GO DOWN FOR A
CONDITIONAL DISCHARGE PLAN, THAT WOULD BE A MINIMUM. THE STATE -- IF THE STATE
HAS NEW EVIDENCE, ADDITIONAL EVIDENCE THAT WOULD SUGGEST A PERSON SHOULD BE
COMMITTED, THE STATE ALWAYS CAN FILE A NEW REQUEST FOR A COMMITMENT. YOU ALWAYS
HAVE THAT POWER. EVEN AFTER A PERSON IS RELEASED. AM I NOT CORRECT ABOUT
THAT? STEPHEN SLOCUM: I APOLOGIZE, YOUR HONOR. I'M UNCLEAR.
IS YOUR HONOR -- JUSTICE ALBIN: A PERSON CAN BE -- IN A CASE
LIKE THIS, INSUFFICIENT EVIDENCE IT WOULD TM GO BACK FOR A CONDITIONAL DISCHARGE
PLAN. IF YOU HAVE OTHER EVIDENCE, OKAY, NOT IN THIS RECORD NOW, THAT WOULD
SUGGEST THAT THE PERSON CONTINUES TO SUFFER FROM THE ABNORMALITY AND IS HIGHLY LIKELY
TO REOFFEND BASED UPON ADDITIONAL EVIDENCE, YOU'RE NOT PREVENTED FROM
APPLYING FOR COMMITMENT EVEN AFTER A PERSON IS RELEASED, AM I CORRECT?
STEPHEN SLOCUM: SO, YES, YOUR HONOR. IN THE EVENT A HYPOTHETICAL WHERE SOMEBODY
HAS GOTTEN THROUGH THEIR CONDITIONAL DISCHARGE PLAN, THE PETITIONER THEN
SUBMITS THERE'S NO OVERSIGHT, ANY CHANGE IN CIRCUMSTANCES, THE STATE CAN FILE A WHOLE
NEW APPLICATION TO PETITION FOR COMMITMENT, YES, YOUR HONOR.
JUSTICE PATTERSON: BUT THE REMAND YOU'RE SEEKING IS NOT THAT. JUST
TELL ME IF I'M CORRECT ABOUT THAT. THE REMAND YOU'RE SEEKING IS ON THE BASIS OF
WHAT REMAINS -- WW REMAINS COMMITTED THE COURT HERE, THE TESTIMONY POTENTIALLY
OF A DIFFERENT PSYCHIATRIC EXPERT WHO MIGHT BE READ THE STATUTE AND CONSIDER THE
EVIDENCE ON BOTH SIDES AND MAKE A DETERMINATION AS TO WHETHER HE POSES
THE RISK THAT THE STATUTE REQUIRES. AM I RIGHT ABOUT THAT. STEPHEN
SLOCUM: PRECISELY YOUR HONOR. IN WW'S CASE WE WERE WAIVING HIS ANNUAL REVIEW
HEARINGS FOR THE PAST TWO YEARS WHILE THIS APPEAL WAS PENNING SO THERE IS
NO NEW EVIDENCE OR CHANGE IN CIRCUMSTANCES TO BE PRESENTED. IT WOULD -- THAT WOULD
COME UP FOR A NEW HEARING ON REMAND OR IF AFFIRMED WOULD COME UP JUST IN THE
NORMAL COURSE OF A REVIEW. CHIEF JUSTICE RABNER: ANYTHING YOU'D
HIKE TO ADD, MR. SLOCUM? I WASN'T ABLE TO UNMUTE. STEPHEN SLOCUM:
JUST SUMMARIZING THAT IT'S THE STATE'S POSITION THAT OF THIS CASE TO BE AFFIRMED.
THERE IS NO PROBLEM BUT THE EFFECT TO THE REMEDIES NECESSARY REMAND IS
APPROPRIATE. THANK YOU YOUR HONORS. CHIEF JUSTICE RABNER:
THANK YOU.