Wednesday, March 10, 2010


NYLJ 5-08-07


1. The civil confinement law gets its first test on a pass/fail system, and squeaks by. In essence, the question is: can you hold someone without the benefit of a jury trial? Yes, according to Mental Health Law Sec. 10.06(g). In the New York State's Attorney General’s position, to be “summary” in nature means the same as Summary Judgment. But the Justice hearing the immediate case doesn’t read it the same way. The term “summary” is the sticking point. “The Legislature has made very specific provisions to the procedures and rules governing such hearing, which mandate more than a ‘summary’ proceeding.”

How much more "more" is is a toss-up, however, when you are using the label “convicted sex offender”. You join the club of public opinion and controversy, you get a bigger bat to swing. In that event, it wouldn’t take more than the state psychiatrist’s testimony to get a 60-day period slated in for the Court to begin a jury trial to determine whether a secure Mental Health Facility is appropriate. What with so many "Fill-in-the-saddest-victim's-name" Laws out there you won't have trouble with schedules or venues, you can be sure of that. The Sex Offender Management and Treatment Act is the pro-active response and there’s very little dispute that it is a popular piece of legislation who’s time has come—it’s just that closed-door portion of the proceedings could still make some people, Civil Libertarians at least, very nervous.

Still, the jury trial is required to offer clear and convincing evidence, or at the minimum more than a shrink with a sheepskin and an Albany paycheck. And that's the safeguard. And this is another case wherein the parse is part and parcel.

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