In re Lesage

Decision Date10 August 2021
Docket NumberSJC-13041
Citation488 Mass. 175,171 N.E.3d 1158
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
Parties Robert LESAGE, petitioner.

Mary P. Murray, for the Commonwealth.

John S. Day, Boston, for the petitioner.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.


The issue before us is whether, in proceedings pursuant to G. L. c. 123A, § 9 ( § 9 ), for discharge from civil commitment as a sexually dangerous person, the Commonwealth's exercise of its statutory right to demand a jury trial constitutes a substantive due process violation in light of the suspension on jury trials because of the COVID-19 pandemic. The Commonwealth appeals from a Superior Court judge's order concluding that the Commonwealth's exercise of its statutory right to demand a jury trial violated the petitioner's substantive due process rights and allowing the petitioner's motion for a bench trial over the Commonwealth's objection. We conclude that the Commonwealth's exercise of its statutory right to demand a jury trial is narrowly tailored to its legitimate and compelling interest of protecting the public from sexually dangerous persons and that the delay resulting from the COVID-19 pandemic has not yet transformed the Commonwealth's exercise of this right into conduct that shocks the conscience. Accordingly, the judge erred in concluding that the petitioner's substantive due process rights were violated. We reverse.1

Background. Over a period of decades, the petitioner, Robert LeSage, sexually assaulted at least thirty children. In 1975, the petitioner repeatedly sexually assaulted a fourteen year old boy (victim). In 1976, he killed the victim after the victim threatened to reveal the sexual assaults to police. The petitioner subsequently fled to Iowa and changed his name. There, he sexually assaulted several boys, including his stepson. He was arrested in Iowa in 1983, at which time he admitted to killing the victim.

The petitioner was returned to Massachusetts, where he pleaded guilty to offenses relating to the victim. The petitioner pleaded guilty to three counts of rape of a child under sixteen years of age and one count of manslaughter, reduced from a charge of murder in the first degree. He served concurrent sentences of from eighteen to twenty years. Near the end of the petitioner's prison sentence in March 2001, the Commonwealth moved to commit the petitioner as a sexually dangerous person. A jury unanimously found the petitioner to be a sexually dangerous person, and he was committed to the Massachusetts Treatment Center (treatment center). The petitioner previously has filed three petitions for discharge pursuant to § 9. In April 2006, the first petition was tried before a jury. The jury found that the petitioner remained sexually dangerous. Following the petitioner's appeal, the judgment was reversed and remanded for a new trial. See LeSage, petitioner, 76 Mass. App. Ct. 566, 572-573, 924 N.E.2d 309 (2010) (reversing judgment and remanding for new trial on ground that record failed to establish that testifying psychologist met statutory requirements for designation as qualified examiner). In 2011, on retrial, a jury found that the petitioner remained sexually dangerous. See LeSage, petitioner, 88 Mass. App. Ct. 1116, 41 N.E.3d 331 (2015) (affirming after retrial). The petitioner withdrew a second petition before trial. He subsequently filed a third petition in 2012, after which a jury found that he remained sexually dangerous in May 2015.

On July 9, 2015, the petitioner filed the § 9 petition at issue in this proceeding. A jury trial in August 2018 resulted in a mistrial because the jury could not reach a verdict. The matter was scheduled for retrial in March 2020, but was continued indefinitely because of the COVID-19 pandemic and the resulting suspension of jury trials in Massachusetts.

The petitioner subsequently filed a motion for a bench trial or, in the alternative, release pending a jury trial. The Commonwealth opposed this motion. After a nonevidentiary hearing via video conferencing, a Superior Court judge granted the petitioner's motion to proceed with a bench trial over the Commonwealth's objection, holding that it was unconstitutional for the Commonwealth to exercise its right to demand a jury trial.

In January 2020, before the scheduled date of the retrial, the petitioner was evaluated by two qualified examiners pursuant to § 9. One of those examiners opined that the petitioner no longer is sexually dangerous, while the other opined that he remains sexually dangerous. A community access board2 (CAB), comprised of five licensed psychologists, unanimously opined that the petitioner remains sexually dangerous. The petitioner is eighty years old and suffers from serious health problems. He is unable to ambulate and uses a wheelchair.

The Commonwealth filed a petition in the Appeals Court pursuant to G. L. c. 231, § 118, appealing from the order and requesting that a single justice report this matter and stay the proceedings in the Superior Court or, in the alternative, vacate the Superior Court judge's order granting the petitioner's motion for a bench trial. The single justice granted the Commonwealth leave to file an interlocutory appeal from the Superior Court judge's order, ordered an expedited appeal, and stayed the Superior Court judge's order. The Commonwealth filed its notice of appeal, and we transferred the case to this court on our own motion.

Discussion. 1. Standard of review. On appeal, we review any conclusions of law de novo. See Kitras v. Aquinnah, 474 Mass. 132, 139, 49 N.E.3d 198, cert. denied, ––– U.S. ––––, 137 S. Ct. 506, 196 L.Ed.2d 406 (2016). The motion judge's decision that it was unconstitutional for the Commonwealth to exercise its right to a jury trial in a § 9 proceeding during the COVID-19 pandemic is a conclusion of law, and accordingly, we review the decision de novo. See id.

2. The statute. We begin by providing background on the relevant statutory scheme. "Where the Commonwealth contends that a prisoner who was previously convicted of a qualifying sexual offense is a sexually dangerous person as defined in G. L. c. 123A, § 1, it may file a petition seeking to civilly commit the individual following his or her release from custody."3 Chapman, petitioner, 482 Mass. 293, 299-300, 122 N.E.3d 507 (2019), citing G. L. c. 123A, § 12 (a ) - (b ). "The Legislature enacted G. L. c. 123A to protect the public from sex offenders who have a mental disease or defect and who, following expiration of their criminal sentences, may still pose a danger to the public and therefore may require commitment to the treatment center, where they may avail themselves of treatment for their disorders." Commonwealth v. Pariseau, 466 Mass. 805, 811, 2 N.E.3d 859 (2014). See Commonwealth v. Knapp, 441 Mass. 157, 159, 804 N.E.2d 885 (2004) (in enacting G. L. c. 123A, Legislature found "the danger of recidivism posed by sex offenders ... to be grave and that the protection of the public from these sex offenders is of paramount interest to the government" [citation omitted]). Cf. Noe, Sex Offender Registry Bd. No. 5340 v. Sex Offender Registry Bd., 480 Mass. 195, 196, 102 N.E.3d 409 (2018) (sex offender registration law is "designed to protect the public from the danger of recidivism posed by sex offenders" [quotation and citation omitted]).

"The [sexually dangerous person] statute balances this public safety concern with specific provisions designed to protect a defendant's liberty interests." Pariseau, 466 Mass. at 811, 2 N.E.3d 859. The "primary objective" of G. L. c. 123A is "to care for, treat, and, it is hoped, rehabilitate the sexually dangerous person, while at the same time protecting society from this person's violent, aggressive, and compulsive behaviors." Sheridan, petitioner, 412 Mass. 599, 604, 591 N.E.2d 193 (1992). Commitment under G. L. c. 123A "is civil and rehabilitative in nature rather than criminal and punitive." Commonwealth v. Travis, 372 Mass. 238, 248, 361 N.E.2d 394 (1977). See Commonwealth v. Bruno, 432 Mass. 489, 500-501, 735 N.E.2d 1222 (2000) (Legislature intended to establish remedial scheme, and scheme has not been shown to be so punitive as to negate Legislature's intent). See also Kansas v. Hendricks, 521 U.S. 346, 363, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997) (indefinite detention is not punitive where it is done to further legitimate nonpunitive government objective, such as protecting public).

After the Commonwealth files a petition under G. L. c. 123A, § 12, seeking to commit an individual civilly following his or her release from custody, a judge must then determine whether probable cause exists to believe that the individual is sexually dangerous. See G. L. c. 123A, § 12 (c ). After hearing, if a judge finds probable cause to believe that the individual is sexually dangerous, the individual shall be committed temporarily to the treatment center for examination and diagnosis by two qualified examiners4 for a period not exceeding sixty days. See G. L. c. 123A, § 13 (a ). Within forty-five days, the examiners must provide the judge with a written report opining whether the individual is sexually dangerous and should be committed to the treatment center. Id. The Commonwealth then has fourteen days to file a petition for trial to determine whether the petitioner indeed is sexually dangerous.5 See G. L. c. 123A, § 14 (a ). Either party may demand that the case be tried by a jury. Id.

The individual remains confined to the treatment center through the duration of the trial. See id. If the jury unanimously find beyond a reasonable doubt that the individual is sexually dangerous, the person is committed to the treatment center for an indefinite term of between one day and the remainder of the person's natural life "until discharged pursuant to the provisions of [§] 9." G. L. c. 123A, § 14 (d ).

At issue in this case is the...

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