Will DOC’s insistence on jury trial hold up?

SJC balancing due process rights in sexually dangerous hearing

IN ADDITION to consuming most of the attention of the legislative and executive branches of government, the COVID-19 pandemic is also keeping the judicial branch busy. Twelve times in the last 11 virus-wracked months, the Supreme Judicial Court has issued decisions resolving some legal tangle caused by COVID.

Among the questions the court has answered: are Gov. Charlie Baker’s emergency orders unconstitutional (no); should we adjust our election laws to reduce the number of signatures that candidates for elective office must collect (yes, by half); must the Department of Correction reduce prison populations to help prevent the spread of disease (no, but judges must consider the dangers presented by the pandemic when making sentencing decisions).

On February 5, the court heard arguments in yet another COVID case, concerning the constitutional rights of a person who has been committed to the Massachusetts Treatment Center at Bridgewater under the state’s sexually dangerous persons law.

That person, Robert Lesage, now 80 years of age, has been in state custody for nearly 40 years, the first 20 in prison for the sexual assault and manslaughter of one of his victims, a 14-year old boy, and the remainder in confinement at the Treatment Center. He is one of about 140 persons currently committed there as sexually dangerous persons, whom the law defines as having a mental abnormality predisposing them to the commission of criminal sexual acts to a degree that makes them a menace to the health and safety of others.

As someone who is not serving a criminal sentence but is nevertheless confined, Lesage has a constitutional interest in his liberty and a due process right to challenge the basis of his confinement – that he remains a sexually dangerous person. He has petitioned the Superior Court for a hearing to determine whether he is entitled to be released from the Treatment Center because he is no longer dangerous. He has sought release twice before and was denied both times.

The Department of Correction is opposing his petition. What brings this case to the Supreme Judicial Court is that the department is also insisting on its right under the civil commitment law to have a jury decide whether or not he will be released.

This jury demand has the effect of postponing Lesage’s opportunity to challenge his commitment indefinitely, because there have been no jury trials in the Superior Court since the pandemic began, and there are no present plans to resume them (a limited to resume jury trials in criminal cases in two state courthouses lasted only two weeks before being cut short last month). The SJC will decide whether the COVID-19 pandemic is a compelling constitutional basis to override the department’s jury demand.

The statute giving the Department of Correction the right to jury trials in these cases was enacted in 1993 during the Weld administration, after a man recently released from the Treatment Center assaulted and murdered two women. Investigating the story, the Boston Globe reported that judges had released not only the murderer but also eight other persons committed to the Treatment Center, after finding that none of them was sexually dangerous any longer.

In response to these high-profile crimes and unfavorable press coverage, the governor’s office filed legislation to toughen the law, including a change to allow the question of a petitioner’s dangerousness be decided by a jury if either the department or the petitioner requested one.  Then-Lt. Gov. Paul Cellucci made clear in the filing letter that accompanied the bill that the state intended to exercise this statutory right as a matter of course: the legislation, he wrote, will “provide that a jury and not a judge will hear and decide” these cases.

The waiting list for civil jury trials, even before the COVID era, was two to three years. Lesage filed his current petition in July 2015. The Department of Correction demanded a jury trial, which took place in 2018, but resulted in a mistrial after the jury could not reach a verdict. In March 2019, the court set a new trial date for March 2020, but by that time all jury trials had been suspended because of the pandemic.

In light of this indefinite delay, the Superior Court judge invited the parties to proceed with a jury-waived trial instead. Lesage agreed, but the Department of Correction refused, arguing that its statutory right to insist on a jury trial is unconditional, the only relief to which Lesage is entitled is for his hearing to be held as soon as jury trials resume, and, in the only nod to its responsibility during the pandemic, insisted that the participation of a jury would promote public safety, which itself would promote public health.

Weighing the importance of Lesage’s constitutional right to a hearing against the Department of Correction’s statutory right to a jury trial, the judge ruled in favor of Lesage: “the indefinite suspension of his … jury trial due to the COVID-19 pandemic and the Commonwealth’s blanket insistence on trying his case to a jury, thereby preventing him from having any meaningful access to the courts, have prolonged his trial past what due process permits.”  She stayed the ruling in order to give the Department of Correction the opportunity to appeal.

Lesage awaits the SJC decision while still confined at the Treatment Center, a setting where the virus can spread most readily — one in 10 prisoners there tested positive in December.

Margaret Monsell, a former assistant attorney general and former general counsel to the state Senate Committee on Ways and Means, is an attorney practicing in the Boston area.