Heard: October 15, 2018
filed in the Superior Court Department on March 9, 2017. A
motion to dismiss was heard by Timothy Q. Feeley, J.
Kenneth E. Steinfield, Assistant District Attorney, for the
S. Day for the defendant.
Present: Agnes, Shin, & Singh, JJ.
hearing, a judge of the Superior Court in Essex County
(motion judge) allowed the defendant's motion to dismiss
the Commonwealth's petition to commit him as a sexually
dangerous person, as defined by G. L. c. 123A, § 1. The
basis of the defendant's argument was that the
Commonwealth did not have sufficient evidence to meet its
burden at trial, as the motion judge had previously excluded
the report of the only qualified examiner to opine that the
defendant was sexually dangerous. See Johnstone,
petitioner, 453 Mass. 544, 553 (2009) (in order for
Commonwealth to proceed to trial, at least one qualified
examiner must opine that the defendant is sexually
dangerous). The report of the qualified examiner at issue had
been excluded (and a third qualified examiner appointed),
based on the "appearance of an inappropriate and
avoidable conflict" of interest in the examiner's
professional association with an expert previously retained
by the Commonwealth in the same matter. The Commonwealth
appeals from the dismissal of its petition. For the reasons
below, we reverse.
March 9, 2017, the Commonwealth filed a petition in the
Superior Court in Essex County to commit the defendant as a
sexually dangerous person, as defined by G. L. c. 123A,
§ 1. At the time, the defendant was an inmate serving a
sentence at the Essex County House of Correction pursuant to
a violation of his probation on offenses of rape of a child
and indecent assault and battery on a child. In its petition,
the Commonwealth stated that it had retained Mark Schaefer,
Ph.D., to review materials related to the defendant, and that
Dr. Schaefer had opined that the defendant was a sexually
dangerous person pursuant to the statute.
to a determination of probable cause, the defendant requested
an interview with Dr. Schaefer. Though Dr. Schaefer agreed
and interviewed the defendant, the interview did not alter
his ultimate opinion that if released the defendant "was
likely to sexually reoffend," and met the statutory
criteria for a sexually dangerous person.
hearing at which Dr. Schaefer testified, a judge of the
Superior Court (not the motion judge) found probable cause to
believe that the defendant was a sexually dangerous person,
and ordered him temporarily committed to the Massachusetts
Treatment Center for examination by two qualified examiners,
pursuant to G. L. c. 123A, § 13. Two qualified examiners
were appointed: Robert H. Joss, Ph.D., and Katrin Rouse Weir,
Ed.D. After interviewing the defendant and reviewing the
relevant materials, Dr. Joss opined that the defendant was
sexually dangerous, and Dr. Rouse Weir opined that the
defendant was not.
the reports of the qualified examiners were submitted to the
court, the defendant moved to exclude Dr. Joss from providing
evidence at trial, or in the alternative, to appoint a new
qualified examiner to evaluate the defendant. As grounds
therefor, the defendant alleged that Dr. Joss and Dr.
Schaefer were both among six "member/partners in
Psychological Consulting Services ('PCS')/ a limited
liability corporation [LLC] based in Salem,
Massachusetts." He argued that the members of the LLC
have a fiduciary duty of loyalty to the company and are
necessarily "dedicated to [its] financial and
professional success." Because Dr. Schaefer and Dr. Joss
were "intertwined both professionally and
financially," through their partnership in PCS, the
defendant claimed that their relationship "create[d] a
conflict of interest and raise[d] a genuine issue of Dr.
Joss's impartiality in his role as a [qualified
examiner]." The defendant offered no affidavit in
support of his motion, and did not request an evidentiary
motion judge allowed the defendant's motion insofar as it
requested the exclusion of Dr. Joss's report, and ordered
the appointment of a new qualified examiner to replace him,
prohibiting the new examiner from reading Dr. Joss's
report. In his order, the judge made no specific findings of
fact, but indicated that his decision was "based on the
appearance of an inappropriate and avoidable conflict."
A. Belle, Ph.D., was appointed as a substitute qualified
examiner, and at the conclusion of his examination and
review, opined that the defendant was not sexually dangerous.
After Dr. Belle submitted his report to the court, the
defendant moved both to dismiss the Commonwealth's
petition for lack of evidence and for release from the