# In re Commitment of Edward S./Concurrence Handler

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Handler
HANDLER, J., concurring.
The Court today holds that our current statutory scheme requires open public proceedings to determine whether an NGI-committee should be released. The extremely strong presumption that these hearings not be held in camera makes the Court's requirement of openness virtually mandatory. Ante at 138, 570 A.2d at 927.
I agree with the Court that these important and sensitive hearings should, in general, be open to the public. However, I write separately to stress that the presumption against the closure of NGI-release proceedings is not insuperable. Importantly, [NJ156] the Court does not deprive 6 hearing judges of sensible and necessary discretion to evaluate the need for the closure of these release hearings. The Court's holding should not be understood to prevent or even discourage a hearing judge from engaging in careful deliberation in weighing the need for public access against legitimate reasons for closure. Moreover, even in circumstances that guide the court to open the hearing, the Court's holding does not mandate that every successive periodic release hearing for an individual NGI-committee be public. The Court anticipates that the closure determination should be made before each successive hearing. In addition, the Court's determination should not be construed to preclude judges from holding release hearings [A937] that are partially open to the public and partially conducted in camera.
Like the majority, I ground my conclusion that NGI release hearings should ordinarily be opened on the public's important and legitimate interest in both the conduct and outcome of such proceedings. Unlike the majority, however, I believe that the conceptual basis for the presumption in favor of opening such a review hearing to the public can be found in the reasons expressed 7 by Justice Pashman in State v. Fields, 77 N.J. 282, 309, 390 A.2d 574 (1978), with respect to the central issue of such a hearing:
   [T]he fact that [the NGI committee] has actually engaged in dangerous conduct otherwise criminal should weigh heavily in the court's assessment of the need for the continued imposition of restraints upon his liberty. . . . [E]vidence pertaining to [the NGI's] offense is highly probative of the ultimate issue. . . . In short, an NGI committee's prior commission of an act for which he has been relieved of criminal responsibility is powerful evidence of his potential dangerousness and should be weighed accordingly in making that judgment.
These words seem both to define the ends of an NGI-release hearing and to explain the public's interest in having access to such a hearing. The public's evident interest in these hearings, however, is not the only factor to be considered.
We must also acknowledge that the Legislature has expressly dealt with this subject matter and has considered what procedures are appropriate. The Legislature has stated plainly [NJ157] and explicitly that NGI-committee hearings "shall be 8 specifically reviewed as provided by the law governing civil commitment." N.J.S.A. 2C:4-9(d). The predominant legislative view focuses on the similarities, not the dissimilarities, between the two types of committees. This Court has itself declared on two separate occasions that NGI and non-NGI committees must receive the same substantive and procedural protections. Fields, supra, 77 N.J. 282, 390 A.2d 574; Krol, supra, 68 N.J. 236, 344 A.2d 289. Underlying these opinions was a recognition that
   [c]ommitment following acquittal by reason of insanity is not intended to be punitive, for, although such a verdict implies a finding that defendant has committed the actus reus, it also constitutes a finding that he did so without a criminal state of mind. There is, in effect, no crime to punish.
   [Krol, supra, 68 N.J. at 246, 344 A.2d 289.]
Thus, in terms of the considerations that should determine release, there are critical differences between NGI-committees and civil-committees. Nevertheless, these ought not result in a procedural chasm between the 9 two. Our decision today must be read in light of our past recognition that, though not identical, NGI-committees are in substantially similar circumstances as civil committees. See ante at 128, 570 A.2d at 922. Today's holding, even though it moves the pendulum far in favor of open hearings, does not totally repudiate the values that animated Rule 4:74-7, governing civil commitment and review proceedings. The policy served by that Rule, including its presumption of in camera hearings "unless good cause to the contrary is shown," retains its vitality and cannot be ignored in addressing the need for public access to review hearings involving NGI committees as now perceived by the Court.
The majority grounds its holding in part on the public nature of the antecedent criminal trial. The Court reasons that because the trial itself was public, the NGI-committee has also suffered a loss of privacy and, therefore, has a diminished privacy interest that is deserving of less consideration and protection. The Court also reasons that the public's interest in [NJ158] the proceeding has been whetted or heightened by the public trial and thus deserves or requires 0 greater indulgence. There may be some truth in each proposition. I believe, however, that the Court exaggerates and distorts their significance and couches its holding in terms that may mislead lower courts and participants in these matters.
[A938] Certainly the public aspects of a criminal trial, which are constitutionally grounded, see State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983), may serve to create and sustain a continuing public interest in the fate of the criminal defendant who has become an NGI-committee. I agree that this legitimate public interest strongly dictates the need for public access in subsequent proceedings, be they denominated civil or criminal, that may result in the return of such an individual into society. But in positing an equivalent need for public access, the Court, I believe, overstates the similarity between the NGI-release hearing and the criminal prosecution from which it originated. I differ from the Court when it reasons that, because of the public nature of the criminal trial, there is a continuing need for public access to subsequent institutional-release proceedings and that this need is so great that 1 it overwhelms all other legitimate and appropriate concerns. I believe there are concerns that the Court does not stress having to do with the integrity of such hearings and the efficacy of the truth-determining procedures of such hearings, as well as with the privacy interests of the person whose liberty is at stake.
The majority's opinion is dominated by the fact that because the NGI committee comes to a mental institution via a criminal prosecution in which he or she was exposed to the public, his or her mantle of privacy has effectively been removed. I fail to see how one can conclude that because a person was once exposed to public scrutiny, the desire and need for privacy is no longer to be prized or preserved. The interests at stake in the underlying criminal trial are wholly different from those in the subsequent NGI hearings. At trial, the fundamental inquiry concerns the defendant's guilt or innocence. At NGI release [NJ159] hearings, the committee has already been judged, quite literally, "not guilty by reason of insanity." The committee's privacy interests, which the majority properly admits are "identical to the civil committee's," ante at 145, 570 A.2d at 931 2 are sharply drawn into issue at these hearings. I cannot subscribe to the view that individual privacy once lost is forever lost and cannot be retrieved, that personal dignity, though severely compromised, cannot be restored. I simply do not place significance on the majority's observation that those privacy interests "have already been significantly eroded by the nature of the trial that led to the NGI commitment." Id.
We have recognized in other kinds of proceedings, that, although the public has a 3 legitimate interest in what happens to a person who has been subjected to criminal prosecution, other considerations can militate against open hearings or can dictate limitations of the extent of public access. See, e.g., N.J. Parole Bd. v. Byrne, 93 N.J. 192, 460 A.2d 103 (1983) (public access to parole hearing may be limited); In re Trantino Parole Application, 89 N.J. 347, 446 A.2d 104 (1982) (same). Even in criminal prosecutions, privacy interests can serve to limit public access. See, e.g., N.J.S.A. 2A:84A-32.1 (in rape prosecution, evidence of victim's prior sexual conduct admitted only after in camera hearing). The need to assure the discovery of the truth can also justify such restrictions. See, e.g., N.J.S.A. 2A:84A-32.4(a) (in child abuse or sexual assault cases, witness may testify on closed-circuit television, out of view of the jury, defendant, and spectators). Thus, while the public continues to have an extremely strong interest in the outcome of institutional-release hearings involving NGI's, that interest is not absolute [NJ160] and may be reasonably conditioned. Consistent 4 with the public's interest and need to know, a court in a given case can and should be able to seek reasonable accommodations of that concern, Byrne, supra, 93 N.J. at 210-11, 460 A.2d 103. But it does not follow [A939] inexorably that such proceedings must necessarily be open to the public.
In addition to concerns for privacy as such, the Court must be mindful of the integrity of such hearings and the special problems involved in the search for the truth. Because of the intrinsic sensitivity, subjectivity and personal nature of such inquiries, and the quality of the testimony and evidence that must be brought to bear to illumine the issues, in camera proceedings may be more conducive to the soundness and validity of that ultimate determination. We have already acknowledged and understood these considerations with respect to civil commitment hearings, parole hearings, adoption hearings, termination of parental rights proceedings, preliminary hearings involving privileged information, and the like. See, e.g., In re Baby M, 109 N.J. 396, 537 A.2d 1227 (1988) (parental rights); Byrne, supra 5 (parole); State v. Boiardo, 83 N.J. 350, 416 A.2d 793 (1980) (preliminary hearing involving privileged information); In re Maraziti, 233 N.J.Super. 488, 559 A.2d 447 (App.Div.1989) (sexual assault of minors); N.J.S.A. 9:3-47 (adoption); Rule 4:74-7 (civil commitment). Cf. N.J.S.A. 2A:84A-32.4(a) (in criminal trial involving child abuse, victim may testify out of courtroom before closed-circuit television). A court must be mindful of the countervailing effects of public access and publicity and appropriately balance such concern. See Trantino, supra, 89 N.J. at 376, 446 A.2d 104 ("it is undeniable that public outrage over an imminent parole determination . . . has no place in a parole proceeding and is to be given no weight in a parole decision.").
These considerations do not overcome the notion that an NGI-committee release hearing should ordinarily be open to the public. But they counsel courts to carefully weigh cases on an individual basis and balance the personal invasiveness of the [NJ161] ensuing inquiry with the correlative public interest 6 in the outcome of the case and the public's need for access to the proceedings. Thus, as I view it, the reviewing court should have the discretion to preserve the integrity of the determinative process and to protect the committee's privacy interests by providing for in camera dispositions of limited aspects of the proceedings if it determines that the need to protect the committee's privacy interests, the need to develop sensitive evidence, and the need to preserve the integrity of the proceedings counsel against an open hearing. In addition, the court also has the authority to hold hearings that are only partially public. See ante at 147 n. 14, 570 A.2d at 932 n. 14. As the majority notes, the court could decide that in a given case only certain persons should have access to the hearing, such as the prosecutor, the committee's family, the victim's family or selected representatives of the press. Ante at 143-144, 570 A.2d at 930. Indeed, the prosecutor has the right to be present at all release hearings. N.J.S.A. 2C:4-8b(3). And as the majority admits, the presence of the prosecutor "guard[s] against any potential danger 7 to the public." Ante at 143, 570 A.2d at 930.
Finally, it is important to consider each successive release hearing separately. As this Court has previously observed, "[t]he standard for determining the need for continued institutionalization is 'dangerousness to self or society.'" Krol, supra, 68 N.J. at 259, 344 A.2d 289. "The reviewing court must consider any improvement or deterioration in the committee's condition since the initial hearing, which serves to increase or decrease the danger he would pose to himself or the community under the current level of restraints." Fields, supra, 77 N.J. at 301, 390 A.2d 574. For the court to conclude that the committee must remain in custody, it must determine that there is "a substantial risk of dangerous conduct within the reasonable foreseeable future." Krol, supra, 68 N.J. at 259, 344 A.2d 289. Thus, is particularly unlikely that an NGI committee will be released at early review hearings. See Fields, supra, 77 N.J. at 303, 390 A.2d 574 ("even where the 8 committee's condition [NJ162] shows marked improvement, only the most extraordinary case would justify modification in any manner other than by a gradual de-escalation of the restraints upon the committee's liberty."). We have required that review [A940] hearings be held every six months, R. 4:74-7(g)(2), so long as an NGI committee remains hospitalized. To a greater extent than in other types of cases, a judge in successive NGI proceedings will generally have the opportunity to become closely acquainted with the intricacies and nuances of the NGI committee's record of treatment and behavior. If the judge anticipates that the committee will remain institutionalized, there may be a lesser need to open the hearing to the public because there is a smaller risk of the damage to the public's sense of justice, so fervently invoked by the Court. See ante at 148, 570 A.2d at 933. Conversely, a judge, thoroughly familiar with the case and the record, may be able to anticipate after a considerable period of institutionalization and treatment that a review hearing is likely to result in the committee's release; this may tilt the scale in favor of an open hearing. 9
I believe the concerns expressed herein are important and should be considered in understanding the standard imposed by the Court and should be factored into the discretion to be exercised by judges under that standard. It is with this perception of the Court's opinion that I express my concurrence with it.

## Footnotes

* ↑ The majority makes the observation: "It is asking too much of the public to have trust in a system of criminal justice that keeps them in the dark, that refuses to tell them why a convicted murderer — for that, although it is a misperception, is how he or she is viewed by many — should be set free." Ante at 146, 570 A.2d at 931 (emphasis added). It is troubling that the Court seemingly gives credence to this "misperception" to bolster the need for public access to these hearings.