Sarzen v. Gaughan

• Decision Date: 10 December 1973
• Docket Number: No. 73-1223.,73-1223.
• Citation: 489 F.2d 1076
• Parties: Cornelius E. SARZEN, Plaintiff-Appellant, v. Charles W. GAUGHAN et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

489 F.2d 1076 (1973)

Cornelius E. SARZEN, Plaintiff-Appellant, v. Charles W. GAUGHAN et al., Defendants, Appellees.

No. 73-1223.

United States Court of Appeals, First Circuit.

Argued September 10, 1973.

Decided December 10, 1973.

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Francis John Stolarz, Boston, Mass., for plaintiff-appellant.

Charles E. Chase, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., were on brief, for defendants-appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

This appeal from denial of a petition for habeas corpus once again raises questions about procedures under the Massachusetts law providing for commitment of sexually dangerous persons, M.G.L. c. 123A. Sarzen complains that he was denied counsel and the right to a hearing prior to the 60-day observational commitment which preceded his final commitment hearing. These deficiencies are alleged to have rendered his later indeterminate life commitment for sexual dangerousness invalid as lacking in due process of law.

The district court held that Sarzen's contentions were foreclosed by our decision in Gomes v. Gaughan, 471 F.2d 794, 798-801 (1st Cir. 1973).¹ But petitioner maintains, correctly we hold, that Gomes is not dispositive of the present facts.

Sarzen, on January 10, 1961, pleaded guilty in the Hampden County Superior Court to indictments for rape and for assault and battery. Seven weeks earlier, he had raped a 17 year old female not known to him; and a month before that he had approached and put his hands on another female who fled. His juvenile record showed two 1959 "peeping Tom" offenses, one of which had been continued without sentence, and one of which had led to his commitment in a Youth Service Board facility, followed by six months parole. Seventeen years old when indicted for rape and assault, Sarzen had reached only fourth grade in a regular school.

Upon acceptance of Sarzen's guilty pleas the court filed the assault charge and sentenced him to four to seven years imprisonment for rape.

The court did not at this time order Sarzen to be examined for possible commitment under M.G.L. c. 123A.² He was instead confined to the Massachusetts Correctional Institution at Concord to serve the sentence for rape. Six months later, in July of 1961, Sarzen was examined by Dr. Cohen, a psychiatrist, after the Concord Superintendent had requested the Department of Mental Health to arrange for an examination. The request and examination are prescribed first steps to a determination of sexual dangerousness under § 6 of M.G.L. c. 123A. Unlike § 4, § 6 applies to persons convicted of any category of crime (non-sexual as well as sexual), and its procedures are available to the Commonwealth at any time until a sentenced prisoner is released. A single psychiatrist must first determine that the inmate "may" be sexually dangerous. Correctional authorities next file a motion with the court, which is accompanied by a copy of the psychiatrist's letter, requesting an order for 60-days commitment for "examination and diagnosis." § 6. If that motion is allowed, the inmate is transported to the Center where he is examined by at least two psychiatrists, § 6. If their report, which must be filed with the court within the 60-day period, "clearly indicates" sexual dangerousness, the district attorney "shall" file a petition for commitment, giving notice to the inmate or others on his behalf. Thereafter, an adversary court hearing is held at which the inmate is entitled to counsel and other safeguards. See §§ 5, 6. See Gomes v. Gaughan, supra.

Sarzen testified that Dr. Cohen's July, 1961, visit was unannounced, brief, and unexplained. A guard told him that "everybody who commits a sex crime" was so examined. But Dr. Cohen, he claimed, revealed nothing about the purpose of the interview. Dr. Cohen, on the other hand, testified that while he could not remember the interview, he "always" tells inmates his name, who he is, who sent him, "and why I am examining, to determine whether or not they are sexually dangerous, and whether in my opinion they should have a period of observation at the Bridgewater Treatment Center."³

Whether or not Dr. Cohen advised Sarzen of the purpose of the interview, it is undisputed that Sarzen did not see nor learn of the letter thereafter sent by Dr. Cohen to the Superintendent of Concord recommending a 60-day commitment for further observation and study. The letter also set forth purported facts about Sarzen,⁴ of which several are mistaken or are disputed by him. Dr. Cohen erroneously wrote that "the records also reveal two arrests for drunkenness in 1959," and that "in addition, he was suspected of several attacks on girls in 1961." Emphasis supplied. The county in which the superior court sat was misstated. Sarzen also now disputes Dr. Cohen's characterization of the rape as "bizarre", and denies ever admitting to Dr. Cohen that he had committed several assaults.

Possibly the errors came in part from a hasty reading of a document entitled "Official Version of Present Offense" prepared by someone at Concord soon after Sarzen came to be confined there. It details, seemingly from police sources, the rape and assault, and also recounts that the police suspected Sarzen "as being the person who was committing assaults upon women which had plagued them for the previous few weeks." The chronology, while vague, is apparently 1960 or earlier; possibly Dr. Cohen took "1961" from the date of the document itself. It is unclear from where the misinformation as to drunkenness convictions came. Prison records indicated that Sarzen was evicted from the family home by his father "while the father was experiencing one of his drunken rages." Possibly the father's own record was confused with petitioner's.

Dr. Cohen's letter, together with a letter from the Superintendent of Concord containing an accurate, if less colorful, summary of Sarzen's background and record, was sent in August, 1961, to the Superior Court. A motion for a 60-day commitment for examination and diagnosis accompanied these papers. The supporting papers did not indicate sexual misbehavior by Sarzen since his incarceration. Sarzen was not notified of the motion for commitment nor advised of the substance of any of the documents filed with the court. The motion was allowed without hearing on September 12, 1961. Sarzen was not offered, nor provided with, counsel.

He was taken to the Treatment Center for observation, and remained there during September and October, 1961. He testified that he neither asked nor was advised by the staff why he was there,⁵ or what the consequences of his examination might be, but conceded that he did learn about such matters from inmates. Sarzen also admitted to receiving, while at Bridgewater, a letter from the public defender who had represented him in the criminal proceeding, which informed him that "because of the sex crime . . . he could be committed to Bridgewater."

Before Sarzen was returned to Concord, Dr. Cohen and Dr. Kozol, another Bridgewater psychiatrist, had filed with the court a report expressing the opinion that Sarzen was sexually dangerous.⁶ Sarzen was not shown nor even notified of the report and, although he asked, was not told that he had been found to be sexually dangerous. He asserts that it was some ten months later that he first learned, from a Concord social worker, that he had been pronounced sexually dangerous.

Seven months after the psychiatrists' report was filed, the District Attorney petitioned the court, on May 13, 1962,⁷ to have Sarzen committed as a sexually dangerous person as defined by Chapter 123A. Nothing further happened until November of 1963, when, at the District Attorney's request, Sarzen was reexamined (at Concord) by Dr. Cohen. Dr. Cohen then wrote another letter repeating that Sarzen was sexually dangerous, citing much the same history as that in his letter of August, 1961.

Sarzen had been eligible for parole in April, 1962, and April, 1963, but was turned down on both occasions because of the outstanding petition to have him adjudged sexually dangerous. During this time Sarzen unavailingly wrote to state officials in an effort to get his case resolved.

The final commitment hearing took place in the Superior Court on February 24, 1964, more than two years after the psychiatrists' report had been filed with the court. An attorney for Sarzen was, for the first time, appointed on the day of the hearing. Two psychiatrists testified, a Dr. Weiss, who had examined Sarzen once at Concord two days before the hearing, and Dr. Cohen. Dr. Weiss gave an opinion of sexual dangerousness based on his examination of Sarzen's pre-1961 record and history, which included Dr. Cohen's letters, as well as his impressions from the single interview.

Dr. Cohen's opinion of sexual dangerousness was based on Sarzen's pre-1961 history and a total of six interviews, four of them during the 60-day Bridge-water commitment in 1961. During a reasonably rigorous cross-examination, it was brought out that he likely erred in believing that Sarzen had two drunkenness convictions in his record. However, Dr. Cohen testified that the error would not affect his conclusion of sexual dangerousness. The two year delay, its affects on petitioner's parole possibilities, and his attempts to expedite the hearing were also mentioned. No witnesses were presented for Sarzen. He took no appeal from the Superior Court's finding of sexual dangerousness.

In 1972, during the pendency of the federal habeas corpus proceedings, Sarzen petitioned the Superior Court for re-examination and release pursuant to M.G.L. c. 123A, § 9.⁸ Following a hearing held in July, 1972, he was found to be no longer a sexually dangerous person and released upon the following conditions: probation for five years during which time he must attend...