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SJC-12388
COMMONWEALTH vs. G.F.
Suffolk. November 9, 2017. - March 20, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Sex Offender. Constitutional Law, Sex offender. Due Process of
Law, Sex offender. Practice, Civil, Sex offender, Civil
commitment, Verdict.
Civil 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.
The 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.
Joseph M. Kenneally (Michael F. Farrington also present)
for G.F.
2
John P. Zanini, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. This 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.1 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).
In this 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
1 Such a finding also may be obtained at a jury-waived
trial, if neither party requests a jury trial. G. L. c. 123A,
§ 14 (a).
3
release, and then stayed that order and reported a number of
questions.
We 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.
1. Background. We 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).
a. Offenses. The 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.
In 1982, while he was on probation for these offenses, the
petitioner sexually molested the thirteen year old daughter of a
4
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.
In 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.
b. Proceedings prior to the three mistrials. Shortly
before the petitioner's sentences were to end, the Commonwealth
5
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, § 1.2
In 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
"To obtain a commitment of a sexually dangerous person,
2
the Commonwealth must prove beyond a reasonable doubt that the
defendant 'suffers from a mental abnormality or personality
disorder which makes [him] likely to engage in sexual offenses
if not confined to a secure facility.'" Commonwealth v. Nieves,
446 Mass. 583, 586-587 (2006), quoting G. L. c. 123A, § 1.
6
petition as untimely.3 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.
In 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
3 The petitioner claimed that his sentence had been
completed before the Commonwealth submitted its petition because
he believed that a specific number of days should have been
credited to his sentence. This issue is not before us.
7
qualified examiners filed written reports in the Superior Court,
concluding that the petitioner was sexually dangerous.
On March 21, 2011, the Commonwealth filed a petition for
trial pursuant to G. L. c. 123A, § 14 (a).4 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.
In June, 2011, a Superior Court judge allowed the
petitioner's motion to dismiss his counsel, canceled the trial
4 A trial must begin within sixty days after the
Commonwealth files an SDP petition, unless it is continued for
good cause or in the interests of justice, as long as the person
named in the petition will not be prejudiced. See G. L.
c. 123A, § 14 (a); Commonwealth v. DeBella, 442 Mass. 683, 687
(2004).
8
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.
In May, 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.
Later 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
9
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 experts.
In 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 April, 2013.5
c. The three mistrials. The petitioner's first SDP trial
took place in April, 2013, more than two years after the
5 Separately, in November, 2012, the petitioner filed a
petition for relief pursuant to G. L. c. 211, § 3, from a
Superior Court judge's October, 2012 order denying his motion to
dismiss. A single justice in the county court denied the
petition, and the full court affirmed the denial.
10
Commonwealth filed the SDP petition in March of 2011. The
petitioner was then fifty-five years old.
After 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.
In 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
11
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 petition.
The 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.
In May, 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
canceled.
In 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
12
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.6 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.
In May, 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 was allowed.
6 "If after trial, the jury find[] unanimously and beyond a
reasonable doubt that the person named in the petition is a
sexually dangerous person, such person shall be committed to the
treatment center . . . for an indeterminate period of a minimum
of one day and a maximum of such person's natural life until
discharged pursuant to the provisions of [G. L. c. 123A, § 9]."
G. L. c. 123A, § 14 (d).
13
In 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. In January, 2016, the
court received updated reports from the qualified examiners.
The petitioner's third trial took place in January, 2016;
at trial he again filed a motion for a directed verdict. The
two qualified examiners testified that the petitioner was likely
to reoffend, due in part to his failure to complete sex offender
treatment. The petitioner responded that core sex offender
treatment was unavailable to him during his pretrial
confinement, and therefore he last had participated in core
treatment during his prison sentence, in 2007.7 According to the
testimony at trial, the only sex offender treatment levels
available to the petitioner while he was being held in pretrial
confinement are ones that he had completed while serving his
criminal sentence.8
7 The petitioner was terminated from core sex offender
treatment in 2007 for noncompliance with institution rules that
treatment professionals interpreted as a failure to learn and
apply the self-control taught in treatment.
8 Full treatment, developed for individuals who are
committed to the treatment center after being found sexually
dangerous, begins with an assessment period that can take months
to complete. As a result, full treatment has been deemed
infeasible for individuals awaiting an SDP trial, whose
14
The third trial also ended in a mistrial when the jury were
unable to reach a unanimous verdict. One juror sent the judge a
note about the petitioner's decision not to speak with a
qualified examiner prior to the third trial, expressing his view
that, by refusing to be available for interviews with qualified
examiners, the petitioner could "virtually guarantee" a
mistrial. The petitioner had asked the judge to instruct the
jury that a unanimous verdict was required to find him sexually
dangerous, but that only ten votes were needed to find that he
was not (asymmetrical jury verdict). The judge denied this
request.
d. Proceedings before fourth trial. The Commonwealth
moved for a fourth trial, and the trial judge set a trial date
for May, 2016. In January, 2016, the petitioner filed a motion
to modify the terms of his confinement; the Commonwealth opposed
the motion. In February, concluding that due process required
that the petitioner be granted access to full sex offender
treatment during his pretrial confinement, the same judge denied
the motion in part and allowed it in part. The judge ordered
the Commonwealth to file a report concerning whether to offer
the petitioner full sex offender treatment or, in the
alternative, to show cause why the petitioner should not be
commitment is intended to last for at most a few months. See
G. L. c. 123A, §§ 13(a), 14(a).
15
released on constitutional grounds or offered another
alternative to detention that the Commonwealth might suggest.
The judge also changed his view as to the asymmetrical jury
verdict, stating that he would instruct the jury that only ten
votes were required to find that the petitioner was not sexually
dangerous, if the petitioner so requested. The Commonwealth
filed a notice of interlocutory appeal as to the decision
regarding the jury verdict. In March, the Commonwealth learned
that the petitioner had been offered and declined sex offender
treatment.
In May, 2016, the petitioner filed a motion for directed
verdict or dismissal of the petition. The Commonwealth opposed
this motion, and the judge denied it. Due to his counsel's
health, the petitioner subsequently moved to continue the May
trial. The judge allowed the motion and assigned the earliest
possible trial date, which was in October, 2016.
In June, 2016, both parties filed a number of motions with
regard to the admissible evidence at the forthcoming trial. The
Commonwealth again sought to exclude evidence of the date of the
filing of its SDP petition, and again moved to admit evidence
that the petitioner had refused to speak with the qualified
examiners prior to the third trial. The petitioner filed a
"Memorandum in Support of Right to Refuse Additional Interviews
of Qualified Examiners." After a hearing, the petitioner filed
16
before the single justice of the Appeals Court a petition for
leave to appeal from the May, 2016, denial of his motion to
dismiss the SDP petition; this petition was dismissed as
untimely. Separately, in August, 2016, a single justice of the
Appeals Court denied without prejudice the Commonwealth's
petition for leave to appeal from the asymmetrical jury
instruction.
A few days before the scheduled trial in October, 2016, a
single justice of the Appeals Court stayed the trial. A
Superior Court judge then reported the case for appellate
determination pursuant to Mass. R. Civ. P. 64 (a), as amended,
423 Mass. 1403 (1996).9 Having concluded that continued
confinement would violate the petitioner's substantive due
process rights, the judge also ordered the petitioner released
with conditions pending trial. The single justice stayed this
order pending a decision by the full court.
The petitioner filed a petition for relief pursuant to
G. L. c. 211, § 3, in the county court. In December, 2016, he
moved to consolidate the claims raised in that petition with the
case that had been reported to the Appeals Court. A single
justice of this court ordered that the claims raised in the
petitioner's G. L. c. 211, § 3, petition be transferred to the
9 Among the reported questions, the judge included his
proposed instruction on asymmetrical jury verdicts.
17
Appeals Court. The Appeals Court subsequently consolidated the
petitioner's claims with the related reported questions. We
transferred the matter to this court on our own motion.
2. Discussion. We are asked to resolve the following
reported questions:
"1. After three mistrials resulting from jury deadlock,
does this court have the statutory and constitutional authority
to hold a fourth trial on the Commonwealth's petition to commit
[the petitioner] as a sexually dangerous person under G. L.
c. 123A, § 12?
"2. If so, may the Commonwealth continue to keep [the
petitioner] confined in strict security pending trial for more
than 5 3/4 years based solely upon a stipulation of probable
cause in January[,] 2011, consistent with statutory and
constitutional principles, including due process and equa1
protection?
"3. In the absence of statutory authority, does this
[c]ourt have any power to conduct a hearing to determine whether
[the petitioner] is sexually dangerous solely for purposes of
pretrial detention and, if so, must such a determination be made
by a preponderance of evidence, clear and convincing evidence,
beyond a reasonable doubt or some other burden of proof?
"4. If the [c]ourt may continue to hold trials on the
Commonwealth's petition in this case, what proportion of the
jury is required to return a verdict of 'not sexually dangerous'
under equal protection and due process principles?
"5. Does the [c]ourt have any power to impose bail,
electronic monitoring, minimum security or other alterations in
the strict security required by G. L. c. 123A, § 14 (a)?"
We review these questions of law de novo. See Commonwealth v.
Diggs, 475 Mass. 79, 81 (2016).
We conclude that the SDP statute permits a fourth trial in
this case. While due process would not permit an indefinite
18
number of retrials, see Gomes v. Gaughan, 471 F.2d 794, 797 (1st
Cir. 1973), that limit has not been reached here, so the
petitioner may be retried.
Although the SDP statute requires confinement until the end
of the SDP trial, the continued confinement in this case,
without a finding of sexual dangerousness beyond a reasonable
doubt, violates the petitioner's substantive due process rights.
As a result, we conclude that he must be afforded the
opportunity to seek supervised release, subject to conditions
that the judge determines are necessary in order to protect
public safety, pending his fourth SDP trial. At a hearing to
determine whether the petitioner may be released pending
retrial, the Commonwealth must show by clear and convincing
evidence that no conditions reasonably could assure that public
safety would be protected if the petitioner were to be released.
If a mistrial occurs at an SDP trial following the release
of the rescript in this case, any individual who is the subject
of an SDP petition must be afforded the opportunity to seek
supervised release according to these procedures.10
Consistent with existing statutory and common law, at the
petitioner's fourth trial, a unanimous jury will be required in
10This shall not apply where a mistrial is necessitated by
the misconduct of an individual who is the subject of an SDP
petition or his counsel at trial.
19
order to make a finding either that the petitioner is sexually
dangerous, or is not sexually dangerous.
a. Whether a fourth trial may be conducted. General Laws
c. 123A, § 14 (d), provides, "If after trial, the jury find[]
unanimously and beyond a reasonable doubt that the person named
in the petition is a sexually dangerous person, such person
shall be committed to the treatment center." Unlike lawmakers
in other States, the Legislature did not limit the number of
times the Commonwealth could seek an SDP finding, or restrict
the circumstances under which a retrial could take place.
Compare id. with N.Y. Mental Hygiene Law § 10.07 (McKinney 2011)
(if jury were twice unable to render unanimous verdict, court
shall dismiss petition); Fla. Stat. Ann. § 394.917(1) (West
2011) (if jury are unable to reach unanimous verdict, judge must
declare mistrial and poll jury, and may conduct retrial only if
majority would find respondent sexually dangerous). See Nemet
v. Boston Water & Sewer Comm'n, 56 Mass. App. Ct. 104, 113
(2002) (had Legislature intended different policy, "it is
reasonable to think that it would have worded the statute in
that manner, as other State legislatures have done").
The SDP statute provides only that commitment is required
after a unanimous finding of sexual dangerousness; it does not
specify the proper course of action in circumstances where the
jury are unable to reach a verdict. See G. L. c. 123A,
20
§ 14 (d). The petitioner argues that if the jury do not reach a
unanimous finding, the statutory language requires that the
petition be dismissed. Jury deadlock, however, "has long been
considered the 'classic basis' for a proper mistrial,"
Commonwealth v. Phim, 462 Mass. 470, 473 (2012), quoting
Blueford v. Arkansas, 566 U.S. 599, 609 (2012), and permits
another trial. Downum v. United States, 372 U.S. 734, 735-736
(1963).
We assume that the Legislature does not depart from settled
law without clearly indicating its intent to do so. See Greater
Boston Real Estate Bd. v. Department of Telecomm. & Energy, 438
Mass. 197, 202 (2002), quoting Ferullo's Case, 331 Mass. 635,
637 (1954). While, in crafting the SDP commitment scheme, the
Legislature had the power to supersede the common law, see
McHoul, petitioner, 445 Mass. 143, 147 (2005), cert. denied, 547
U.S. 1114 (2006), it has not done so with regard to the
procedure following a mistrial. Had the Legislature intended
that jury deadlock would result in dismissal, rather than
retrial, "the wording of the statute could have easily reflected
[this intent]. It does not." Rowley v. Massachusetts Elec.
Co., 438 Mass. 798, 802 (2003). As a result, we conclude that
the SDP statute does not require dismissal in the event that the
jury are unable to reach a verdict, and permits a fourth trial
in this case.
21
We conclude further that a fourth trial in the
circumstances of this case would not offend substantive due
process. Substantive due process prohibits governmental conduct
that "shocks the conscience" or infringes on rights "implicit in
the concept of ordered liberty" (citation omitted). Commonwealth
v. Fay, 467 Mass. 574, 583, cert. denied, 135 S. Ct. 150 (2014).
The "requirements for minimum due process may vary depending on
the context." Commonwealth v. Burgess, 450 Mass. 366, 372
(2008), and cases cited. Although "the oppressive misuse of
multiple commitment proceedings would doubtless be a violation
of due process," Gomes, 471 F.2d at 797, a fourth trial here
would not rise to that level.
We interpret the SDP civil commitment statute in light of
its dual goals: protecting public safety while safeguarding
respondents' procedural rights. See Commonwealth v. Knapp, 441
Mass. 157, 160 (2004). "[I]t is beyond question that the
Legislature has a compelling interest in protecting the public
from sexually dangerous persons." Burgess, 450 Mass. at 376.
We repeatedly have affirmed the statute's balancing of
respondents' rights and the goal of protecting public safety.
See, e.g., Pariseau, 466 Mass. at 811, 814 (2014); Commonwealth
v. Nieves, 446 Mass. 583, 594 (2006). Both interests remain at
stake in this case. While the Commonwealth has been unable to
secure a unanimous jury verdict finding the petitioner to be
22
sexually dangerous, jury disagreement does not necessarily
indicate a failure of proof. See Sheridan, petitioner, 422
Mass. 776, 780 (1996). Given the possibility of a risk to
public safety, the Commonwealth's decision to retry the
petitioner is not an arbitrary use of government power, rising
to the level of a substantive due process violation. See County
of Sacramento v. Lewis, 523 U.S. 833, 836 (1998) (arbitrary
conduct that shocks conscience violates substantive due
process).
Courts in other jurisdictions have held that two or even
three criminal retrials may be held without violating due
process, so long as the prosecution acts in good faith. See,
e.g., United States v. Hall, 551 F.3d 257, 273 (4th Cir. 2009)
(due process did not prohibit retrial after three mistrials);
United States v. Quijada, 588 F.2d 1253, 1255 (9th Cir. 1978)
(due process permitted third trial after two mistrials, absent
harassment by prosecutor); State v. Cordova, 128 N.M. 390, 394
(1999) (same). See also United States vs. Jones, U.S. Ct. App.,
No. 96-1667, slip op. (2d Cir. July 25, 1997), cert. denied, 522
U.S. 976 (1997) (fourth trial not barred by due process after
two juries were unable to reach verdict and one conviction later
reversed); People v. Sierb, 456 Mich. 519, 521, 525 (1998) (due
process did not preclude third trial after two juries were
unable to reach verdict). The petitioner has adduced no case,
23
and we are aware of none, indicating that due process prohibits
a retrial after three mistrials.
The purpose of the SDP statute is "to have cases brought to
trial rapidly, but not to deny justice in the interest of
expediency." Commonwealth v. DeBella, 442 Mass. 683, 691
(2004). At a certain point, the use of retrials undoubtedly
would violate due process. Gomes, 471 F.2d at 797. See United
States v. Castellanos, 478 F.2d 749, 753 n.4 (2d Cir. 1973)
(multiple retrials could violate due process if prosecution
sought "trial by attrition"). That point has not been reached
here, however. Given the potential threat to public safety,
dismissal of the SDP petition in this case is not necessary in
order to balance the constitutional interests at play. As a
result, we conclude that the petitioner may be retried.
b. Resulting delay. Permitting a fourth trial will, of
course, occasion further delay. Recognizing that the petitioner
already has experienced extraordinary delay -- years beyond what
the Legislature likely envisioned when it drafted the SDP
statute -- we nonetheless conclude that, in this case, the delay
resulting from the allowance of a fourth trial is not in
violation of statutory requirements. Due process, however,
entitles the petitioner to seek supervised release pending
retrial.
24
General Laws c. 123A, § 14 (a), generally requires that an
SDP trial be held within sixty days after the Commonwealth files
its petition, but allows delays for good cause or in the
interest of justice, as long as the respondent is not
prejudiced. See Gangi v. Commonwealth, 462 Mass. 158, 161
(2012). Where an individual has acquiesced to the delay, the
Commonwealth may be able to show good cause for exceeding the
sixty-day statutory deadline. See DeBella, 442 Mass. at 690.
See also Knapp, 441 Mass. at 166 n.12 (no statutory violation
although trial had not occurred over two years after probable
cause finding, where "the judge noted that trial has been
delayed '[m]ostly at the request of the [defendant]'"). While
the delay in this case cannot be attributed entirely to one
party's actions, it falls within the statutory exceptions to the
sixty-day requirement.
The petitioner sought to postpone his trial and related
proceedings on several occasions. In April, 2011, he told his
counsel that he did not want a trial to be held right away. He
subsequently requested that his trial, then scheduled for
December, 2012, be postponed until February, 2013, and then
again to later that month. In both postponement requests, the
petitioner waived his right to a prompt trial. Following the
first mistrial, the petitioner's newly appointed lawyer
experienced medical complications, and several pretrial
25
conferences and hearings subsequently were postponed. After the
second mistrial, the petitioner repeatedly requested that his
third trial be continued due to his attorney's medical
complications, and the trial subsequently was postponed, from
May, 2014, until January, 2016. While his attorney's medical
situation was undoubtedly out of the petitioner's hands, he
chose to continue working with his attorney, although he was
aware that a delay could occur as a result. See DeBella, 442
Mass. at 690 (where respondent acquiesces in delay, statutory
exception to sixty-day deadline applies).
The delay preceding the first trial included a period from
August, 2011, through May, 2012, when no action took place. The
responsibility for this delay appears to rest with both parties.
While the Commonwealth bears the primary responsibility for
bringing the case to trial within the statutory time frame, "the
defendant shares the obligation to take active steps to move his
case through the system." Commonwealth v. Lynch, 70 Mass. App.
Ct. 22, 27 (2007). The petitioner and his attorney took no
action in response to a May, 2012, letter from the Commonwealth
proposing to "get this case back on track," until the
Commonwealth petitioned for trial in July of that year.
Some portion of the delay in this case clearly resulted
from the Commonwealth's actions. The Commonwealth, for example,
took two months to request updated qualified examiner reports
26
after the first mistrial. The Commonwealth also moved to
continue a status conference for eleven days in July, 2011,
because an assistant district attorney needed to tend to a
family matter, and moved to continue the first trial from
November, 2012, because a qualified examiner would be on
vacation that day. Given the relatively short time frame of
both delays, and the fact that the Commonwealth requested these
postponements for reasons beyond its control, the allowance of
these continuances was reasonable and the brief delays were
merited. See Knapp, 441 Mass. at 165-166.
Additionally, the petitioner has experienced substantial
delay since his third trial took place in January, 2016. To the
extent that this resulted from interlocutory appeals, it falls
within the good cause exception to the sixty-day requirement.
See Mass. R. Crim. P. 36 (b) (2) (A) (iv), 378 Mass. 909 (1979)
(excluding time elapsed during interlocutory appeals from time
within which criminal trial must commence). See also Pariseau,
466 Mass. at 811 (criminal context may provide guidance in
construing SDP statute). The petitioner also requested that the
fourth trial, scheduled for May, 2016, be continued due to his
counsel's health.
Finally, the majority of the delay undoubtedly has resulted
because the petitioner's first three trials resulted in jury
deadlock. While the petitioner is not responsible for this
27
portion of the delay, for purposes of determining whether the
statutory deadline has been met, the clock must restart after a
mistrial. See Mass. R. Crim. P. 36 (b) (1) (D), as amended, 422
Mass. 1503 (1996) (restarting speedy trial timeline after
retrial). Additionally, these delays were merited: the
Commonwealth was attempting to adjudicate the petitioner's
sexual dangerousness.
In sum, although the delay in this case is extraordinary,
it occurred in large part due to circumstances that cannot be
attributed to the Commonwealth, and therefore falls within the
statutory exceptions to the sixty-day requirement. See G. L.
c. 123A, § 14 (a).
We note, however, that G. L. c. 123A, § 14 (a), prohibits
delay -- even for good cause or in the interest of justice --
where "the person named in the [SDP] petition will be
substantially prejudiced." The petitioner's inability to
receive SDP treatment pending trial clearly constituted
prejudice. See Pariseau, 466 Mass. at 811. Following the third
trial, the Department of Correction ultimately offered
treatment, which the petitioner thereafter declined.
Considering the circumstances overall, there is no indication
that the petitioner would be prejudiced at a fourth trial, given
that he will receive the protections guaranteed by G. L.
c. 123A, § 14 (a). "The robust, adversary character of the
28
c. 123A procedure minimizes the risk of the erroneous commitment
of a person who is not sexually dangerous." Nieves, 446 Mass.
at 591. Given this, in some other circumstances involving
substantial delay, the court has concluded that a petitioner's
"case was not impaired by reason of the delay," and therefore
that dismissal was not required. See Commonwealth v. Blake, 454
Mass. 267, 280 (2009) (Ireland, J., concurring). Such is the
case here. Accordingly, at this juncture, dismissal of the
Commonwealth's petition is not required. Nonetheless, due
process demands the petitioner be afforded certain relief at
this point.
Substantive due process prohibits government conduct that
"shocks the conscience," or interferes with "rights implicit in
the concept of ordered liberty" (citation omitted). Fay, 467
Mass. at 583. Where the government seeks to infringe on a
fundamental right, in order to comply with the requirements of
substantive due process, its action must be narrowly tailored to
further a compelling and legitimate government interest.
Commonwealth v. Aime, 414 Mass. 667, 673 (1993). "The right of
an individual to be free from physical restraint is a
paradigmatic fundamental right." Knapp, 441 Mass. at 164.
The SDP statute requires that the subject of an SDP
petition be confined between a probable cause finding and the
resolution of the SDP trial. See Pariseau, 466 Mass. at 809.
29
Nonetheless, "[i]t is settled that a temporary civil commitment
to the treatment center, pending the outcome of a G. L. c. 123A
hearing, implicates a liberty interest, and therefore, due
process protections apply." Blake, 454 Mass. at 276 (Ireland,
J., concurring), and cases cited. As a result, "we . . . go
beyond the language of the statute to determine whether its
apparent intent is constrained by the requirements of due
process under the State or Federal Constitutions." Sheridan,
petitioner, 422 Mass. at 778. In this case, the petitioner's
extraordinarily long commitment absent a finding of sexual
dangerousness violates substantive due process.
We consistently have concluded that confinement pending an
SDP trial is constitutional, only because that commitment is
temporary, and the SDP statute requires an expedited timeline
for trial. See, e.g., Pariseau, 466 Mass. at 811, n.8; Blake,
454 Mass. at 268; id. at 278 (Ireland, J., concurring); Knapp,
441 Mass. at 168. See also Gangi, 462 Mass. at 160 ("Among the
rights afforded an individual subject to confinement under G. L.
c. 123A are strict procedural deadlines governing commitment
proceedings"). "The balancing of interests contemplated by the
statutory framework may be upset when an SDP determination is
not made within the established time frames." Pariseau, 466
Mass. at 813. Civil commitment of people who potentially pose a
threat to public safety does not violate substantive due
30
process, as long as that commitment takes place according to
proper procedures and evidentiary standards. See Fay, 467 Mass.
at 584. "It is uncontested that G. L. c. 123A outlines proper
procedures and evidentiary standards," Fay, supra at 585, but
the statute does not envision commitment for almost seven years,
based merely on a determination of probable cause.
While substantive due process permits limited confinement
after a probable cause determination, it does not permit the
Commonwealth to hold an individual indefinitely while repeatedly
seeking a finding of sexual dangerousness. See Andrews,
petitioner, 368 Mass. 468, 488 (1975) (Commonwealth cannot hold
person indefinitely without proving sexual dangerousness beyond
reasonable doubt). "[C]onfinement without legal justification
is never innocuous," Commonwealth v. Kennedy, 435 Mass. 527, 530
(2001), and the legal justification for confinement weakens
after an SDP trial is concluded without a finding of sexual
dangerousness. See Pariseau, 466 Mass. at 813.
Due process demands that the petitioner have the
opportunity to seek supervised release. See Pariseau, 466 Mass.
at 814. In that case, we considered the appropriate remedy
after a judge presided over a jury-waived trial pursuant to
G. L. c. 123A, § 14, and then failed to meet the thirty-day
deadline for rendering a verdict. Pariseau, 466 Mass. at 806.
31
See Blake, 454 Mass. at 268.11 Because the petitioner was not
prejudiced by the delay, however, due process required neither
dismissal nor a new trial. See Pariseau, supra at 812-813. We
determined, however, that "justification for continued
confinement becomes considerably more attenuated after the
passage of this thirty-day period, or any agreed-upon extension,
absent countervailing extraordinary circumstances." Id. at 814.
Accordingly, we concluded "that a defendant may seek review by
the trial judge if, thirty days after the end of a jury-waived
trial, the judge has not issued a decision on the Commonwealth's
petition pursuant to G. L. c. 123A, § 14. A defendant may move
for a prompt decision and supervised release while the matter
remains under advisement and until a decision issues regarding
sexual dangerousness." Id.
The circumstances here require a similar conclusion. In
the event of a mistrial, an individual who is the subject of an
SDP petition may seek release under the supervision of the
Department of Probation pending retrial. "The availability of
release in such circumstances is justified by [such a person's]
liberty interest, which the Legislature recognized when it
11The SDP statute does not provide a deadline by which a
judge must render a verdict in a jury-waived trial. See
generally G. L. c. 123A, § 14. Consistent with the expedited
pace of the SDP statute, in Commonwealth v. Blake, 454 Mass.
267, 268 (2009), we determined that, absent extraordinary
circumstances, the judge must render a decision within thirty
days after the end of a trial.
32
established an expedited pace for proceedings under" the SDP
statute. Id. The opportunity ensures that the SDP regime is
sufficiently "narrowly tailored," Aime, 414 Mass. at 673, under
the strictures of substantive due process, yet meets the
government's compelling interest in protecting public safety.
See Burgess, 450 Mass. at 376.
We recognize that, here, the petitioner will be afforded
the opportunity for supervised release only after his third
mistrial, notwithstanding our conclusion that this right exists
after a single mistrial. Nonetheless, due process does not
require dismissal in this case. As the Superior Court judge
noted, "The absence of full sex offender treatment plays a major
role in the substantive due process violation." See Pariseau,
supra, at 811 (inability to access sex offender treatment
constitutes prejudice). After the third mistrial, the
Commonwealth ultimately offered full sex offender treatment,
which the petitioner declined. "Prejudice required for
dismissal focuses on the subsequent trial and the interference
with procedural rights therein." Commonwealth v. Viverito, 422
Mass. 228, 231 (1996). The delay in this case has not impaired
the petitioner's ability to mount a legal defense at his fourth
trial. In the absence of prejudice, dismissal of the SDP
petition is not required, where other remedies can ensure
33
compliance with the requirements of due process. See Pariseau,
supra, at 812.
c. Supervised release hearing. The criminal context can
provide useful guidance as to the appropriate procedures for a
supervised release hearing under the SDP framework. See
Pariseau, 466 Mass. at 813-814. We look particularly to G. L.
c. 276, § 58A, which permits pretrial detention of persons
accused of certain crimes on the grounds of dangerousness, in
order to protect public safety. We have determined that this
scheme meets the requirements of substantive due process
provided by the Federal and State Constitutions. Mendonza v.
Commonwealth, 423 Mass. 771, 778, 782 790 (1996). The pretrial
detention statute applies only to individuals who have been
arrested for specific dangerous offenses, and requires the
government first to show probable cause. Id. at 774. The SDP
civil commitment regime, which applies only to individuals who
have committed specified sex offenses, and requires a probable
cause finding before initial commitment, is similar in these
respects. See G. L. c. 123A, §§ 1, 13.
Under the pretrial detention statute, before an individual
may be detained pending trial, a judge must find "by clear and
convincing evidence that no conditions of release will
reasonably assure the safety of any other person or the
community." G. L. c. 276, § 58A (3). The individual has the
34
right to be represented by counsel, to testify, present and
cross-examine witnesses, and present information. G. L. c. 276,
§ 58A (4). In the event of a negative determination in the
District Court Department or the Boston Municipal Court
Department, the individual may seek review in the Superior Court
Department, and the petition for review must be heard within two
days. G. L. c. 276, § 58A (7). A bail decision by a Superior
Court judge is reviewable in the county court under G. L.
c. 211, § 3. See Brangan v. Commonwealth, 477 Mass. 691, 705
(2017). See United States v. Salerno, 481 U.S. 739, 751-752
(1987) (upholding Federal Bail Reform Act, which also requires
adversary hearing using clear and convincing evidence standard,
and provides for expedited appeal); Aime, 414 Mass. at 680,
quoting Foucha v. Louisiana, 504 U.S. 71, 83 (1992) (Federal
Bail Reform Act represents "one of those carefully limited
exceptions [to pretrial freedom] permitted by the due process
clause"). In the event that a judge determines that no
conditions of release reasonably will assure the safety of any
other person or the community, G. L. c. 123A, § 58A (3),
permits pretrial detention for 120 days, excluding any period of
delay as defined in Mass. R. Crim. P. 36 (b) (2).
Applying similar principles to the SDP regime, following a
mistrial, a Superior Court judge must conduct an adversary
hearing to determine whether the subject of the petition can be
35
released under conditions that reasonably would ensure public
safety. See G. L. c. 276, § 58A (3). At such a hearing, due
process requires the individual have all of the rights afforded
at a hearing under G. L. c. 276, § 58A (4), including the right
to be represented by counsel, to testify, to present and cross-
examine witnesses, and to present information. If the judge
concludes that public safety concerns could be addressed by
imposition of conditions, the judge may order release, with
conditions, such as electronic monitoring, that he or she deems
necessary. The judge may order the individual held in custody
only if the judge finds by clear and convincing evidence that no
conditions reasonably can ensure public safety.
In determining whether any conditions reasonably could
ensure public safety, a judge should consider those factors set
forth in G. L. c. 276, § 58A (5), and those risk factors
provided in the regulations of the Sex Offender Registry Board
(SORB) that are relevant to the current mental state of a person
confined pending an SDP trial.12 See G. L. c. 6, § 178K (1)
(SORB risk factors used to assess risk of recidivism); 803 Code
12Relevant risk factors contained in the Sex Offender
Registry Board's regulations include statutorily defined mental
abnormality; behavior while incarcerated or civilly committed;
recent threats made by the respondent; hostility towards women;
less than satisfactory participation in sex offender treatment;
age; physical condition; and participation in or completion of
sex offender treatment. See 803 Code Mass. Regs. §§ 1.33(1),
(12), (14), (15), (24), (30), (31), (32) (2016).
36
Mass. Regs. § 1.33 (2016). As it will at trial, the inquiry
should focus on the individual's current mental state. See
Commonwealth v. McLeod, 437 Mass. 286, 291 (2002) ("the
requisite sexual offense conviction is not the basis for the
commitment [rather it is mental condition]" [emphasis in
original]). Whereas, at a probable cause hearing, the court
lacks "the necessary and critical expert evidence of sexual
dangerousness that will be offered at a trial on a petition for
commitment under" the SDP statute, Commonwealth v. Reese,
438 Mass. 519, 523-524 (2003), following a mistrial, the court
may consult the qualified examiner reports and any other expert
testimony presented at trial. See G. L. c. 123A, § 13 (a). Cf.
Green, petitioner, 475 Mass. 624, 630 (2016).
If a judge determines, after a hearing held pursuant to
these procedures, that no conditions of release reasonably will
assure the safety of any other person or the community, the
individual shall remain confined until retrial.13 If a petition
for release is denied, the court must order the Commonwealth to
offer SDP treatment, in order to avoid prejudice to the
individual in subsequent trials to determine sexual
13Accordingly, the 120-day time limit for pretrial
confinement under G. L. c. 123A, § 58A (3), is inapplicable
here.
37
dangerousness.14 See Pariseau, 466 Mass. at 811; G. L. c. 123A,
§ 14 (a). If a second mistrial occurs, the individual must have
the opportunity to seek supervised release again, under the
procedures outlined.
Although the SDP statute does not explicitly include
provisions regarding a supervised release hearing in these
circumstances, "[w]e recognize that the courts of the
Commonwealth have certain inherent and implied powers in
addition to those powers expressly enumerated in various
statutes." Department of Mental Retardation v. Kendrew, 418
Mass. 50, 55 (1994). See Pariseau, 466 Mass. at 814 (judge may
allow supervised release pending decision on sexual
dangerousness in jury-waived trial, notwithstanding absence of
express statutory authority); Commonwealth v. Parra, 445 Mass.
262, 266 n.5 (2005) ("this court ordered the release of the
defendant pending outcome of this appeal, on appropriate
conditions to be determined after a hearing before a judge in
the Superior Court"). Due process requires that an individual
held pursuant to the SDP statute have the opportunity to seek
supervised release following a mistrial, and must be released
unless a judge determines by clear and convincing evidence,
14While an individual may decline sex offender treatment,
that decision would not render continued confinement a violation
of due process. See Nieves, 446 Mass. at 593.
38
after an adversary hearing, that no conditions of release
reasonably can assure the safety of the community or any person.
d. Jury verdict. We also are asked to determine what
proportion of the jury is required, at the petitioner's fourth
trial, to return a verdict of "not sexually dangerous." General
Laws c. 123A, § 14(d), requires a unanimous jury verdict for a
finding of sexual dangerousness and subsequent commitment to the
treatment center. General Laws c. 123A, § 9, provides that a
person who has been held at the treatment center for at least
one year may petition annually for release, and a verdict as to
whether the individual remains sexually dangerous may be reached
by a vote of ten out of twelve jurors. See Sheridan,
petitioner, 422 Mass. at 780-781. In this case, the Superior
Court judge determined that the SDP statute permits the
Commonwealth's petition to be dismissed if ten out of twelve
jurors conclude that the petitioner is not sexually dangerous,
because, had the jury found him sexually dangerous at his first
trial, by now he would have spent at least one year at the
treatment center, and could have filed a petition for release
under G. L. c. 123A, § 9. Equality and fairness therefore
require, according to the judge, an asymmetrical jury verdict
instruction in this case.
We are mindful that G. L. c. 123A, § 14 (d), explicitly
refers to the requirement of a unanimous jury verdict for a
39
finding of sexual dangerousness, and is silent as to the
proportion necessary to reach the contrary conclusion. Common
and statutory law consistently have provided, however, that the
same proportion of jurors is required in order to reach a
finding for either party in a civil case, and of guilt or
innocence in a criminal case. See, e.g., 3 W. Blackstone,
Commentaries *375 (unanimous jury required for verdict in civil
trial); 4 W. Blackstone, Commentaries *354 (jury must deliver
criminal verdict in same form). See also Blueford, 566 U.S. at
608, quoting Allen v. United States, 164 U.S. 492, 501 (1896)
(goal of jury system is to secure unanimity); Commonwealth v.
Zekirias, 443 Mass. 27, 33 (2004) (only unanimous jury verdict
is valid); Mass. R. Crim. P. 27 (a), 378 Mass. 897 (1979) (jury
verdict must be unanimous); Mass. R. Civ. P. 48, 450 Mass. 1404
(2008) (parties may stipulate that finding by stated majority of
jurors be accepted as verdict). Indeed, we are unaware of any
scenario in which an asymmetrical requirement has been allowed
or imposed.
An individual who petitions for release under G. L.
c. 123A, § 9, unlike a person tried under G. L. c. 123A, § 14,
has had access to at least one year of sex offender treatment.
"Commitment to the treatment center and the treatment an SDP
receives there is intended to provide an SDP with an opportunity
to overcome his 'general lack of power to control his sexual
40
impulses' so that he can successfully reenter society." Hill,
petitioner, 422 Mass. 147, 154, cert. denied, 519 U.S. 867
(1996). Because the differential treatment of those confined
under G. L. c. 123A, § 14, and G. L. c. 123A, § 9, is
"rationally based" on this treatment opportunity, it raises no
equal protection concern. See Vacco v. Quill, 521 U.S. 793, 801
(1997), quoting Personnel Admin'r of Mass. v. Feeney, 442 U.S.
256, 272 (1979).
"We shall not override the legislative mandate without a
compelling constitutional basis." Sheridan, petitioner, 422
Mass. at 780. The Legislature chose to require a less than
unanimous jury verdict in G. L. c. 123A, § 9, and not in G. L.
c. 123A, § 14. "The omission of particular language from a
statute is deemed deliberate where the Legislature included such
omitted language in related or similar statutes." Fernandes v.
Attleboro Hous. Auth., 470 Mass. 117, 129 (2014). See
Commonwealth v. Gagnon, 439 Mass. 826, 833 (2003) ("where the
legislature has carefully employed term in one place and
excluded it in another, it would not be implied where excluded"
[citation omitted]).
We read statutory provisions in light of the common law and
existing statutes. Liability Investigative Fund Effort v.
Medical Malpractice Joint Underwriting Ass'n of Mass., 409 Mass.
734, 742 (1991), S.C., 418 Mass. 436, cert. denied, 513 U.S.
41
1058 (1994), quoting Pereira v. New England LNG Co., 364 Mass.
109, 115 (1973). "Statutes are to be construed in the light of
the preexisting common and statutory law . . . . It is not to
be lightly supposed that radical changes in the law were
intended where not plainly expressed." Greater Boston Real
Estate Bd., 438 Mass. at 202, quoting Ferullo's Case, 331 Mass.
635, 637 (1954). In the absence of clear legislative intent, the
SDP statute cannot be read to permit an asymmetrical jury
verdict at the petitioner's fourth trial.
3. Conclusion. We answer the reported questions as
follows:
1. The petitioner may be retried for a fourth time on the
Commonwealth's petition to commit him as a sexually dangerous
person under G. L. c. 123A, § 12.
2. Due process requires that the petitioner be afforded a
hearing and the opportunity for release with conditions pending
his fourth trial.
3. The Superior Court judge has the authority, and the
obligation, to conduct a hearing to determine, by clear and
convincing evidence, whether there are conditions under which
the petitioner may be released pending his retrial. The
petitioner must be released unless the Superior Court judge
determines, by clear and convincing evidence, that no conditions
can reasonably ensure public safety.
4. To reach a determination that an individual is "not
sexually dangerous" at a trial under G. L. c. 123A, § 14, a
unanimous jury verdict is required.
5. After a mistrial at a G. L. c. 123A, § 14 (a) trial, a
Superior Court judge may impose bail, electronic monitoring, or
other conditions of release, as the judge deems appropriate,
consistent with public safety.
42
So ordered.