Heard: November 9, 2017.
action commenced in the Superior Court Department on December
24, 2010. A motion to modify the temporary order of
confinement and for an order of custody conditions, filed on
October 17, 2016, was heard by Douglas H. Wilkins, J., and
questions of law were reported by him to the Appeals Court.
Civil action commenced in the Supreme Judicial Court for the
county of Suffolk on October 24, 2016.
case was heard by Gaziano, J., and the matter was reported by
him to the Appeals Court. After consolidation in the Appeals
Court, the Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
M. Kenneally (Michael F. Farrington also present) for G.F.
P. Zanini, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
case concerns G. L. c. 123A, the statute governing civil
commitment of sexually dangerous persons (SDP). Prior to
civilly committing an individual under this statute, the
Commonwealth must obtain a unanimous jury verdict finding
that the individual is sexually dangerous. G. L. c. 123A,
§ 14 (d). Subject to certain exceptions, the trial to
determine sexual dangerousness must be held within sixty days
after the Commonwealth files a petition for trial. G. L. c.
123A, § 14 (a.) . During this time, the individual is to
be temporarily confined. See G. L. c. 123A, § 14
(e); Commonwealth v.
Pariseau, 466 Mass. 805, 808 (2014).
case, the Commonwealth filed a petition seeking to commit the
petitioner as an SDP in December, 2010. Following years of
delay and three mistrials, the petitioner remains confined
without a finding that he is sexually dangerous. He contends
that substantive due process and the SDP statute require
dismissal of the Commonwealth's petition. A judge of the
Superior Court concluded that continued confinement violated
the petitioner's substantive due process rights, ordered
his release, and then stayed that order and reported a number
conclude that the SDP statute permits a fourth trial in the
circumstances of this case. While due process would impose a
limit on the number of retrials that may take place under the
SDP statute, that limit has not been reached here. The
petitioner's nearly seven-year confinement without a
finding of sexual dangerousness, however, does violate his
substantive due process rights as provided by the Fifth and
Fourteenth Amendments of the United States Constitution and
the Massachusetts Declaration of Rights. Accordingly, he must
be afforded the opportunity to seek supervised release prior
to his fourth trial.
summarize the uncontested facts from the record, discussed in
part in two different Superior Court judges' decisions on
the petitioner's motions for release from confinement.
See Chin v. Merriot, 470 Mass.
527, 529 (2015).
petitioner has pleaded guilty to sexual offenses on four
separate occasions. In 1980, he pleaded guilty in the
California Superior Court to lewd and lascivious conduct upon
a child. On multiple occasions, he had sexually molested a
friend's thirteen and eleven year old daughters.
1982, while he was on probation for these offenses, the
petitioner sexually molested the thirteen year old daughter
of a friend, at knife point, in the friend's apartment.
He pleaded guilty in the California Superior Court to lewd
and lascivious conduct upon a child by force with the use of
a deadly weapon.
1992, the petitioner also agreed to sufficient facts in the
Massachusetts District Court to support convictions of, among
others, open and gross lewdness and assault with a dangerous
weapon. In October, 1993, the petitioner pleaded guilty in
the Superior Court to charges of three counts of rape of a
child; three counts of kidnapping; two counts of assault and
battery; one count of mayhem, assault and battery by means of
a dangerous weapon, and one count of making threats. The
petitioner repeatedly had raped his girl friend's six
year old daughter while she was bound and gagged. According
to the child's statements, he threated to kill her mother
if the child said anything. The child reported that, on one
occasion, her four year old sister entered the room, and the
petitioner forced both girls to perform fellatio upon him. He
also forced his girl friend to do so until she had an asthma
attack. The petitioner was sentenced to concurrent terms of
from fifteen to twenty years on each of the rape charges, and
concurrent terms of from five to ten years on each of the
charges of kidnapping and mayhem.
Proceedings prior to the three mistrials.
before the petitioner's sentences were to end, the
Commonwealth retained as a qualifying examiner Dr. Carol
Feldman to evaluate him. In December, 2010, Feldman
determined that the petitioner suffers from pedophilia, a
mental abnormality as defined in the SDP statute, as well as
antisocial personality disorder, resulting in an inability to
control his sexual impulses. Feldman analyzed multiple risk
factors, including the petitioner's prior sexual
offenses, his prior inability to abide by the rules of his
probation, and his termination from sex offender treatment in
2007 after slapping another resident. She also utilized an
actuarial tool that assesses the risk of recidivism. She
concluded that "if [the petitioner] were released at
this time, both his Mental Abnormality and Personality
Disorder make it highly likely that he would recidivate
sexually, " and opined that he met the criteria for
sexual dangerousness as defined by G. L. c. 123A, §
December, 2010, the Commonwealth filed a petition pursuant to
G. L. c. 123A, § 12 (b), alleging that the petitioner is
still sexually dangerous. The Committee for Public Counsel
Services assigned the petitioner an attorney, whom the
petitioner asked to file a motion to dismiss the SDP petition
as untimely. In January, 2011, the Commonwealth moved
to commit the petitioner to the Massachusetts Treatment
Center (treatment center) pending a determination of probable
cause pursuant to G. L. c. 123A, § 12 (e) . A Superior
Court judge allowed the unopposed motion. That month, the
petitioner asked his attorney to withdraw as counsel because
the attorney had not filed a motion to dismiss the SDP
petition as the petitioner had requested and because, one
month into their attorney-client relationship, the two had
yet to meet. The attorney did not withdraw at that time, and
no formal filings were made requesting his withdrawal.
February, 2011, the petitioner waived his right to a hearing
and stipulated that there was probable cause to believe that
he was sexually dangerous. See G. L. c. 123A, § 12 (c).
A Superior Court judge accordingly found probable cause that
the petitioner was sexually dangerous, and ordered him
committed to the treatment center for a sixty-day period of
evaluation, pursuant to G. L. c. 123A, § 13 (a.) . While
at the treatment center, the petitioner was evaluated by two
qualified examiners, as required under G. L. c. 123A, §
13 (a.) . In March, 2011, the qualified examiners filed
written reports in the Superior Court, concluding that the
petitioner was sexually dangerous.
March 21, 2011, the Commonwealth filed a petition for trial
pursuant to G. L. c. 123A, § 14 (a.) . The trial was
scheduled for June, 2011. In April, 2011, the petitioner
corresponded with his attorney about retaining experts to
assess him, in addition to the qualified examiners that the
Commonwealth would present at trial. The attorney suggested
two experts; the petitioner agreed to one and not the other.
That same month, the petitioner told the attorney that he was
not ready to set a trial date, even if this meant waiving his
"time limits." The petitioner explained that he
needed time to "counter the [S]tate [qualified
examiner] reports" and to ensure that his experts had
sufficient time to interview him. He then once again asked
his attorney to withdraw, and this time filed a motion
requesting that the attorney be dismissed as counsel. The
petitioner also filed a pro se motion to dismiss the SDP
petition as untimely.
June, 2011, a Superior Court judge allowed the
petitioner's motion to dismiss his counsel, canceled the
trial scheduled for that month, and set a status date in
July, 2011. Later that month, the Commonwealth moved to
continue the status date for another ten days, so that the
assistant district attorney could attend to a family matter.
The judge set a new hearing date for early August. At the
August hearing, a new attorney appeared for the petitioner.
2012, after no further proceedings had taken place, the
assistant district attorney wrote to the petitioner's
counsel, proposing to "get this case back on
track." At the end of July, without hearing from the
petitioner's counsel, the assistant district attorney
moved for trial. At an August, 2012, hearing, a Superior
Court judge allowed the Commonwealth's motion and the
parties set a trial date for November, 2012. At a status
hearing in September, the judge allowed a motion by the
Commonwealth to continue the trial because one of the
qualified examiners was scheduled to be on vacation during
the time that the trial was scheduled. The trial was
rescheduled for December. The Commonwealth opposed the
petitioner's previously-filed pro se motion to dismiss.
The Commonwealth also moved for an order to update the
qualified examiner reports, which the court allowed.
in September, the petitioner's counsel moved to dismiss
the petition, arguing that the Commonwealth had failed to
begin trial within sixty days of its petition, as required by
G. L. c. 123A, § 14 (a.) . The following month, finding
"sufficient circumstantial evidence" of compliance
with G. L. c. 123A, § 14 (a.), the judge denied this
motion. By December, the court received updated written
reports from the qualified examiners and the petitioner's
experts. In a motion and accompanying affidavit filed that
month, the petitioner requested that the trial be postponed,
because his attorney had not received recordings of his
interviews with the qualified examiners. The petitioner also
waived his statutory rights to a prompt trial. The judge
allowed this motion to continue for "good cause, "
and set trial for the week of February 4, 2013, the date that
the petitioner had requested, in order to accommodate his
January, 2013, the petitioner again moved to reschedule the
trial, this time to February 25, 2013, "or a date
agreeable to the court, " and again waived his rights to
a prompt trial. For reasons that are not apparent from the
record, the judge subsequently rescheduled the trial to
The three mistrials.
petitioner's first SDP trial took place in April, 2013,
more than two years after the Commonwealth filed the SDP
petition in March of 2011. The petitioner was then fifty-five
four days of trial, the jury deliberated for two days, but
were not able to reach a unanimous verdict. The judge
declared a mistrial. In June, the Commonwealth moved to
update the qualified examiner reports; the motion was
allowed. In September, the parties moved jointly to
reschedule a pretrial status hearing to October. When the
petitioner's counsel had a medical emergency, the hearing
was moved again, to one week later. Following the start of
medical complications, however, the petitioner's counsel
experienced "an unforeseen, unexpected and unanticipated
incapacity to engage in the on-going preparation of [the
petitioner's] opposition to [the SDP] petition for three
months." A hearing scheduled for December, 2013,
subsequently was canceled, and the petitioner requested that
a January, 2014, hearing be postponed. Hearings scheduled for
February, 2014, and March, 2014, also were not held. In
February, 2014, the two qualified examiners filed updated
reports with the court.
March, 2014, the petitioner moved unsuccessfully to continue
his trial -- scheduled to begin that month before a different
judge -- in a motion that again waived his statutory right to
a prompt trial. The petitioner requested the postponement
after one of his experts stated that he would be unable to
testify effectively before the judge who would oversee the
March trial due to "continuing confrontations"
concerning the expert's requests for payment. That motion
was denied the same month. The judge also denied motions for
a directed verdict, mistrial, and dismissal of the SDP
petitioner's second trial took place over approximately
two weeks in March, 2014. The petitioner filed another motion
for a directed verdict, which was denied. At the end of the
trial, the judge declared a mistrial because the jury were
once again unable to reach a verdict. In April, 2014, the
judge held a trial assignment conference.
the petitioner requested to continue the third trial, which
was scheduled for the end of that month, to September, in
order to provide him time to interview new witnesses and to
consult with an expert. A different Superior Court judge
allowed the motion, but ordered the parties to return in June
for a hearing on a trial date. In September, the
petitioner's counsel was hospitalized and underwent major
surgery. A trial that had been scheduled for December was
March, 2015, updated qualified examiner reports were filed
with the Superior Court, and the Commonwealth petitioned for
a trial within sixty days. The trial was scheduled for June.
The petitioner filed a motion to dismiss. He argued that
because G. L. c. 123A, § 14 (d), provides only that a
unanimous jury finding of sexual dangerousness requires
commitment to the treatment center, in the event that a jury
failed to reach unanimity, the Commonwealth's petition
would have to be dismissed and he would have to be
released. In April, this motion was denied, on the
grounds that the jury's failure to reach a unanimous
verdict did not require either a directed verdict or
dismissal of the SDP petition.
the petitioner waived the trial date that had been scheduled
for June, due to his attorney's medical complications and
resulting temporary inability to work on his case. The
petitioner expressed his desire to have the same counsel
continue to represent him, and "waive[d] all of [his]
procedural rights for a trial of this action during the next
four months." The judge allowed this motion and ordered
the parties to confer with the session clerk to set a new
trial date. Also that month, the Commonwealth moved to admit
evidence that, prior to the third trial, the petitioner had
declined to speak with the qualified examiners; the motion
August, 2015, the petitioner moved to continue his trial to
December because of his attorney's medical complications
and resulting incapacity. The judge allowed the continuance,
and scheduled the trial for January, 2016; the parties
thereafter jointly requested that date be postponed. ...