COMMONWEALTH VS. G.F.
SJC-12388
Supreme Judicial Court of Massachusetts
March 20, 2018
Suffolk. November 9, 2017. Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReportersjc.state.ma.us
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.
John P. Zanini, Assistant District Attorney, for the Commonwealth.
GAZIANO, J. This
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 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
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 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 retained as a qualifying examiner Dr. Carol Feldman to evaluate him. In December, 2010, Feldman determined that the petitioner suffers from pedophilia,
In December, 2010, the Commonwealth filed a petition pursuant to
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
On March 21, 2011, the Commonwealth filed a petition for trial pursuant to
In 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.
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,
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 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
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 because
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
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
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
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 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
The petitioner filed a petition for relief pursuant to
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 equal 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 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 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
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
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.
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 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, 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
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.
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 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
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 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
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 portion of the delay, for purposes of determining whether the statutory deadline has been met, the clock
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
We note, however, that
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
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
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,
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 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
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 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
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.”
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 released under conditions that reasonably would ensure public safety. See
In determining whether any conditions reasonably could ensure public safety, a judge should consider those factors set forth in
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 dangerousness.14 See Pariseau, 466 Mass. at 811;
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
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.”
We are mindful that
An individual who petitions for release under
“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
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. 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:
- 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 . - Due process requires that the petitioner be afforded a hearing and the opportunity for release with conditions pending his fourth trial.
- 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.
- 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. - 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.
So ordered.