Robert Wilentz

“ The hearing open to the public seems almost a denial of his acquittal, a detriment to one found by law not guilty and, by the ethics that shaped that law, a detriment to one who is sick only and not evil. There are others involved however, other needs, other interests, and they are compelling. Society's concerns here are strong and equally legitimate. The interests conflict, and a choice must be made.
VI. Practically all of the factors that have, on balance, persuaded us to presumptively require open hearings for NGI murder committees bear strongly on our determination of legislative intent. ”

“ But if the civil right of the patient is strong enough to permit his or her presence despite whatever jeopardy it may cause to the psychiatric testimony and to subsequent treatment, the public's right is at least as compelling — when balanced against that same interest, already diluted by the presence of next of kin, relatives of the victim, and the patient himself or herself. ”

“ It is almost inconceivable that the Legislature, so consistently concerned with protecting the public from potential NGI committees' dangerousness, so aggressively alert in its amendments of the statute, alert to correct any perceived weakening of that protection, would mandate a procedure truly disturbing to the public, unequalled in its potentially destructive effect on public confidence in the system, a mandated closed hearing that can free an NGI murder committee. ”

“ Trial courts retain the power, for good cause, to order that any periodic hearing, or part of it, be held in camera. That decision calls for a sensitive weighing of all of the factors mentioned throughout this opinion, including the committee's continuing interest in privacy and confidentiality. The public interest in open proceedings in these matters remains paramount, of course, but depending on the circumstances, it can be overcome. ”

“ The first appearance of an in camera hearing requirement in New Jersey is a part of the history of increasing attention to the rights of persons suffering from mental illness. As doubts concerning the fairness of society's treatment of the mentally ill grew, legislative provisions affording greater protection were adopted, reflected in, and to some extent triggered by [NJ125] judicial decisions on the subject. The most basic change rejected "insanity" alone as justification for commitment: dangerousness to self or society became the standard. ”

“ All of them go to the heart of this most important interest, namely, maintaining public confidence. One of the most important obligations of government, and [A933] in particular of the judiciary, is to legitimately preserve public confidence. Under these circumstances we believe the public is entitled to know why someone deemed to have murdered another, not punished because of insanity but thereafter committed, is now going to be set free. The only way it will ever know is if the proceedings are open to the public.
We realize the ultimate consequence of our holding to the NGI murder committee. ”

“ 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, although it is a misperception, that is how he or she is viewed by many — should be set free. If they were given all the facts, it might still be difficult for them to understand, but without the facts it is impossible.
[A932] We believe that the professionalism of psychologists and psychiatrists is such that they will not withhold treatment or prejudice treatment because of this determination. ”

“ We note first of all that the requirement of in camera proceedings does not necessarily exclude everyone but the witnesses and the parties. All "in camera" means is that the [NJ144] public is excluded. Even in civil commitments the in camera hearing contemplates the presence of the patient's next of kin, for while the statute does not give them the right to be present, it authorizes the court to allow them to be. ”

“ The next difference, again by way of a specific amendment to reverse the effect of a judicial determination, eased the State's evidentiary burden in continuing the NGI's commitment, clearly designed to provide a greater likelihood of [A934] continued NGI confinement, again protecting the public from unwarranted NGI release. The last difference, once more by way of amendment overriding the result of a judicial determination, made that which was no offense if done by a civil committee a crime if the actor was an NGI committee -- escape, the clearest potential threat to the public. ”

“ Anyone moderately familiar with criminal trials and the public's reaction where juries acquit on murder charges by reason of defendant's insanity knows the strength of these concerns and the vulnerability of the justice system to extreme erosion of confidence. Sociological studies confirm this. [13] Most note-worthy of the conclusions of one such study is that 88.7% of those surveyed believed that the system of releasing committees allows dangerous people back onto the streets. ”

“ But if a judge were of a mind to waver, how much more difficult it is to be brave when the decision you render will be for reasons that no one knows as compared to a decision that you have the opportunity to explain. ”

“ NGI committees are, in the eyes of the law, equally innocent, equally sick, and not necessarily any more dangerous. There are, however, at least three qualifications to this judicial mandate of equal treatment. First, what is required is not absolute equality, but "substantial equality." In State v. Krol, supra, 68 N.J. at 250-51, 344 A.2d 289, we stated:
[NJ129] the fact that the person to be committed has previously engaged in criminal acts is not a constitutionally acceptable basis for imposing upon him a substantially different standard or procedure for involuntary commitment. ”

“ As innocent under our law as one who never committed any crime, as free of guilt as all who are mentally ill, as afflicted with the pain of such illness, as needing and deserving of help as all others, the NGI murder committee is, by our ruling, treated differently, in a sense protected less. ”

“ An individual who has committed an act of violence, and has thus demonstrated his dangerousness, and who has successfully asserted an insanity defense, may quite properly be treated somewhat differently from other individuals who, although they may in fact be potentially equally dangerous as a result of mental problems, have not yet so vehemently demonstrated their dangerousness by violent antisocial behavior. ”

“ As noted later, ( Section VI at 148, 570 A.2d at 933) , our conclusion concerning legislative [A927] intent is based on considerations that also lead to the conclusion that good cause presumptively [NJ137] exists in all cases in which the NGI committee was acquitted of murder. That conclusion avoids the conflict that would otherwise exist were we to conclude, as a matter of "practice and procedure," that NGI periodic review hearings should be held in open court and further conclude that the statute unconditionally required in camera hearings. ”

“ The in camera hearing preserves their privacy, their dignity, and is thought by some to afford a greater likelihood of a more candid evaluation and a lesser likelihood of the hearing interfering with future psychiatric treatment. ”

“ Krol, 68 N.J. at 251, 344 A.2d 289 (emphasis supplied) ) .]
Second, the substantial equality that is mandated is based on the reasons for the constitutional mandate, namely, the protection of the committees' liberty interests, not other interests such as privacy and confidentiality. Third, to the extent that there are in fact differences between civil and NGI commitments, that will justify different treatment. [3]
No case has ever suggested any requirement of absolute equality of procedure or treatment in all respects. ”

“ Cruz, supra, 76 N.J.Super. at 328, 184 A.2d 528 (quoting Eggers v. Kenny, 15 N.J. 107, 124, 104 A.2d 10 (1954) ) ; see State in Interest of L.M., 229 N.J.Super. 88, 101-102, 550 A.2d 1252 (App.Div.1988) . We do not address the constitutional issue here because the parties did not raise it, and because a decision either way would not change our conclusion, i.e., if the constitutional provision invalidates the incorporation, our conclusion is unaffected since we hold there is no incorporation intended insofar as an absolute requirement of in camera hearings for NGI committees is concerned ”

“ Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) , preponderance [A924] of the evidence -- at least in New Jersey -- for NGI committees. The constitutionality of that less demanding standard, rejected by In re Scelfo, 170 N.J. Super. 394, 406 A.2d 973 (App.Div.1979) , was reaffirmed by legislative amendment of N.J.S.A. 2C:4-8 and thereafter upheld by In re A.L.U., 192 N.J. Super. 480, 471 A.2d 63 (App.Div.) , certif. den., 97 N.J. 589, 483 A.2d 131 (1984) . ”