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In re Green

Supreme Judicial Court of Massachusetts, Suffolk

October 4, 2016

JAMES GREEN, petitioner.

          Heard: March 10, 2016.

         Petition filed in the Superior Court Department on August 11, 2011 The case was heard by Laurence D. Pierce, J., and a motion for a new trial was heard by him.

         The Supreme Judicial Court granted an application for direct appellate review.

          Mary P. Murray for the Commonwealth.

          Michael A. Nam-Krane for the petitioner.

          Joseph M. Kenneally, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1]

          HINES, J.

         This is an appeal from the denial of the Commonwealth's motion for a new trial after a jury found the petitioner, James Green, no longer sexually dangerous in a proceeding brought pursuant to G. L. c. 123A, § 9. In the motion for a new trial, the Commonwealth challenged as erroneous and prejudicial the judge's instruction that in order to find the petitioner sexually dangerous, the jury must credit the expert opinion testimony of the qualified examiner. The Commonwealth claims that the judge's instruction was erroneous because it improperly commented on the weight a jury must give to a witness's testimony and prejudicial because it precluded the jury's full consideration of testimony by the community access board (CAB).[2]

         We granted direct appellate review to clarify the reach of Johnstone, petitioner, 453 Mass. 544 (2009), where we interpreted G. L. c. 123A as creating a unique and central role for the qualified examiner[3] in proceedings under the statute. Our conclusion in Johnstone, that a petitioner is entitled to be discharged without trial if neither qualified examiner opines that the petitioner remains a sexually dangerous person (SDP) and that the Commonwealth may not rely on the CAB or other sources to obtain the necessary expert testimony, established a "gatekeeper" role for the qualified examiner. While our holding in Johnstone makes clear that a trial is foreclosed unless at least one qualified examiner opines that the petitioner remains sexually dangerous, we did not explicitly address whether, after crossing that threshold, the Commonwealth may meet its burden to prove sexual dangerousness regardless of the probative value of the qualified examiner's testimony. We conclude, based on the centrality of the qualified examiner's role in SDP proceedings, that a finding of sexual dangerousness must be based, at least in part, on credible qualified examiner opinion testimony and that a jury instruction to that effect is essential to the informed exercise of the jury's fact-finding function.[4]Therefore, we affirm the judge's denial of the Commonwealth's motion for a new trial.


         After being convicted of three separate sex offenses between 1991 and 2002, Green volunteered for treatment while incarcerated. After being convicted of another sex offense in 2006, he was transferred to the Massachusetts Treatment Center in 2007. Prior to his scheduled release, the Commonwealth filed a petition[6] to commit Green as an SDP.[7] In July, 2011, after a jury trial, Green was found sexually dangerous. Two months later, in August, 2011, Green filed a petition for discharge pursuant to G. L. c. 123A, § 9.[8] As permitted by the statute, the Commonwealth requested a jury trial to determine whether the petitioner remained an SDP.

         During pretrial hearings in March, 2015, the judge informed the parties of his intention to instruct the jury that they may not find the petitioner to be sexually dangerous unless they credited the testimony of a qualified examiner who so opines. See Johnstone, 453 Mass. at 553. The judge provided a written copy of the instructions, and the Commonwealth renewed its objection.

         At trial, the qualified experts disagreed as to whether the defendant had a qualifying mental condition, whether his age reduced his likelihood of reoffending, and whether his treatment protocol during confinement was effective. The Commonwealth presented two experts who opined that Green remained sexually dangerous. The qualified expert called by the Commonwealth, Dr. Nancy Connolly, testified that the defendant had "personality disorder with antisocial features, " and that if released, "he would not be able to control his sexual impulses." Dr. Angela Johnson, representing a unanimous vote among CAB members, [9] agreed with Dr. Connolly's diagnosis and testified that the CAB was concerned about the defendant's plan to return to the town where he perpetrated his second offense without the benefit of monitoring by the probation department. Green presented three experts who opined that he was no longer sexually dangerous. Dr. Joseph Plaud and Dr. Leonard Bard testified that Green did not meet the criteria for either a personality disorder or mental abnormality. The other qualified examiner, Dr. Margery Gans, joined ...

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