N.H. court opens hearings for sex offender

From the Winter 2008 issue of The News Media & The Law, page 29.

By Amy Harder and Alanna Malone

In a victory for state media and open government advocates, a unanimous New Hampshire Supreme Court in December ruled that the lower court used the wrong legal standard to keep sexual predator commitment proceedings — designed to keep violent sex offenders in jail even after they have served sentences for their crimes — from public view.

"The Legislature has found that sexually violent predators pose a significant public safety risk and that they often commit further acts of sexual violence after being released from confinement," Judge Linda Dalianis wrote for the unanimous court. "Thus, it is particularly important that the citizens of New Hampshire be able to hold their government accountable for the integrity of the proceedings under the (new law.)"

This decision was the result of an appeal by two newspapers, the Concord Monitor and the New Hampshire Union Leader, seeking information from the closed hearing of William DeCato, a convicted rapist and the first person to be affected by a new law allowing the state to continue holding violent sexual offenders after they complete their criminal sentences.

Public access v. privacy

Last January, Merrimack Superior Judge Philip Mangones closed a preliminary hearing about Decato to the media and the public, ruling that the hearing on whether Decato should be held for an evaluation was a private civil matter and not a criminal case.

DeCato had just finished his sentence when a new law took effect.

According to the Involuntary Civil Commitment of Sexually Violent Predators Act, the state can extend by up to five years the sentence of sexual predators who it argues remain dangerous.

The law also states that certain medical and mental health records relating to these cases could be sealed.

Annmarie Timmins, the reporter at the Concord Monitor who covered the DeCato case, said the public would benefit more from seeing the new law "in action," to gauge its effectiveness.

"We argued, and I think the high court agreed, that denying public access to these proceedings jeopardized the public's ability to assess the effectiveness and fairness of a new law," Timmins said.

The state eventually dropped its case against DeCato due to a lack of evidence, but the newspapers still appealed the lower court's ruling to gain access to the undisclosed information, which included testimony from physicians and counselors who had treated DeCato.

Kathleen Sullivan, an attorney for the Union Leader, noted the importance of keeping documents related to sexually violent predators open for the public's safety.

"The public would have been really left in the dark as to why a convicted sex offender had been released back into the community," Sullivan said. "Or, on the other hand, if someone had been deprived of his or her liberty, the public wouldn't have had any way to know why that had happened."

Theodore Lothstein, the attorney representing DeCato, countered that sexual offenders are often under the impression that their records, such as psychological and medical logs from treatment they received while they were in prison, are confidential. Lothstein said this private information shouldn't be available to the public.

"Experience and logic" test

To determine whether the presumptive right of access applies to specific types of proceedings, courts rely on the "experience and logic" test, recognized by the U.S. Supreme Court in Press Enterprise v. Superior Court in 1986 and echoed in the state Supreme Court case Associated Press v. State of New Hampshire.

Under this test, a court must determine "whether the place and process have historically been open to the press and general public," and "whether public access plays a significant positive role in the functioning of the particular process in question." The lower court erred in how it applied both prongs of the test, according to the state Supreme Court.

To determine whether the experience prong was met, the lower court compared the new measure to involuntary commitment proceedings for mentally ill people who are not sexual offenders, which are presumptively closed.

The high court instead looked at prior sexual predator laws and determined that trials related to commitment hearings of sexual predators have been presumptively open.

The Supreme Court determined the logic prong of the test was also met.

"To enhance the quality and safeguard the integrity of the SVPA proceedings, public access must include more than simply the information whether certain persons are committed," Judge Dalianis wrote, adding: "it should include the factual basis that led the court to commit or release them."

The case has been sent back to the trial court where a hearing will be set to review the sealed materials against the public access standard to determine if they should be made public or remain closed.

Ruling's impact

Even though the newspapers are still waiting to find out if they'll receive the previously sealed information related to DeCato, Sullivan said the court's ruling will be important in future cases.

"It's going to provide a lot of guidance for courts in the future for what, if anything, should be closed or sealed," she said. "I hope that the lower court and other courts dealing with these questions will be a lot more open and it won't be so difficult for the press and the public to have information about what the courts are doing with sexually violent predators."

Along with DeCato, two other men who have been deemed to be "sexually violent predators," will likely encounter similar challenges in a neighboring county.

The trial court initially ruled that all of the records from the proceedings should be open to the public, relying on the New Hampshire constitution's long-standing tradition of open courts; this decision was prior to the DeCato case ruling.

The two men, Thomas Hurley and William Ploof, appealed and are now awaiting a hearing from the higher court, which postponed any hearings until the DeCato case was decided, said Michael Valentine, the assistant county attorney who is prosecuting them.

"I think that the New Hampshire Supreme Court has given a strong indication that if they [Hurley and Ploof] do pursue their appeals, because of the judge's ruling in this case, the court will rule in favor of open proceedings," Valentine said.

The Reporters Committee for Freedom of the Press, along with the attorney for the Concord Monitor, William Chapman, filed an amicus brief in June 2007, noting the importance of public involvement in trials of sexual predators.

"Closing the proceedings will merely leave the public to guess at not only what that damaging information might be (and likely imagining the worst possible scenarios) but also whether or not the government is properly handling the situation," the brief stated.

Chapman said that all the states that have some type of civil commitment of sexually violent predators law — more than one-third of the country — differ in the technicalities of each law's wording, which makes it difficult to pinpoint the exact impact this New Hampshire ruling could have nationally.

Most importantly, these states recognize a need for open courts in cases regarding sex offenders, Chapman said.

"Our position was, is, and always will be, that if you only know the result, but you don't know what went into the result, then you're in no position to know whether or not the court has acted properly," Chapman said.