COMMONWEALTH vs. ROBERT BLANCHETTE.

LENK, J. Following an evidentiary hearing pursuant to G. L. c. 123A, § 12(c), a Superior Court judge determined that the Commonwealth had not shown probable cause to believe that

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Robert Blanchette is a sexually dangerous person as defined in G. L. c. 123A, § 1. The Commonwealth contends on appeal that the judge misapplied the pertinent standard for determining probable cause, erroneously rejecting in the process certain evidence presented by the Commonwealth.

The timing of the probable cause hearing in question compounds the difficulty of the issue presented. The hearing took place on May 2, 2000, after the effective date of St. 1999, c. 74, §§ 3-8, which amended G. L. c. 123A, but before the decision in Commonwealth v. Bruno, 432 Mass. 489 (2000), which clarified many residual unsettled issues. Among those unsettled issues was the burden of proof that the Commonwealth must bear at a § 12(c) probable cause hearing. [Note 1] Accordingly, at Blanchette's probable cause hearing, the Commonwealth expressly proceeded on a "probable cause to arrest" standard, a less onerous burden of proof that Bruno later rejected in favor of a so-called "directed verdict" standard. See Bruno, supra at 510. In reaching her decision, however, the judge indicated her reliance upon a standard of proof derived from the reasoning in a decision of another Superior Court judge, a standard which in large measure presaged the standard later articulated in Bruno.

Notwithstanding the position it took at the hearing, [Note 2] the Commonwealth now contends that the judge in essence used the correct standard but misapplied it by evaluating and, in instances, rejecting the Commonwealth's evidence. We are called upon in

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this case to explore the meaning of the Bruno "directed verdict" standard and to address the scope of the judge's role in making the requisite determination under § 12(c), "whether probable cause exists to believe that the person named in the petition is a sexually dangerous person." [Note 3] G. L. c. 123A, § 12(c).

Procedural background. At the end of April, 2000, Blanchette had completed nearly sixteen years in prison for serious sexual offenses he had committed against four female children in 1979 and 1982. Days before his release, the Commonwealth filed a petition for temporary commitment under G. L. c. 123A, § 12(b). After a hearing, Blanchette was ordered temporarily committed to the Treatment Center at Bridgewater pursuant to G. L. c. 123A, § 12(e), pending a probable cause hearing. On May 2, 2000, the judge heard both Blanchette's motion to dismiss and the § 12(c) probable cause issue. On June 9, 2000, the judge concluded, as relevant here, that probable cause did not exist to believe that Blanchette is a sexually dangerous person. She then vacated her prior order holding him at the Treatment Center, and briefly stayed that order to permit an emergency appeal to a single justice of this court. The single justice then stayed Blanchette's release pending appeal, and he remains to date in the Treatment Center. [Note 4]

The probable cause hearing. The only witness to testify was

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the Commonwealth's expert, Dr. Niklos Tomich, an experienced forensic psychologist who, as a "qualified examiner," had previously performed a number of evaluations for sexual dangerousness. In addition, there were eight exhibits, not all of which are before us. [Note 5] It is not clear from the hearing transcript precisely which of these documents the expert reviewed [Note 6] in making his evaluation of Blanchette, but it is clear that Tomich

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based his opinion solely upon his six-hour long "total review" of that record since, prior to his testimony, he had not spoken with Blanchette.

On direct examination, Tomich opined that Blanchette fit the definition of a sexually dangerous person under G. L. c. 123A, § 1, in that he suffers from a mental abnormality or personality disorder that makes him likely to engage in future sexual offenses if not confined to a secure facility. He based this opinion upon his review of the records insofar as they addressed Blanchette's criminal offenses, personal history, and incarceration history.

Blanchette's mental abnormality, the expert said, is pedophilia. His personality disorder is that of antisocial personality disorder. Tomich testified that, based on the nature of the 1979 and 1982 criminal sexual offenses, Blanchette exhibits symptoms of pedophilia, as indicated by the number of Blanchette's victims (four), their ages (9-14 years old), that they were known to him, that two were of diminished capacity (both had cerebral palsy and one was blind), the number of sexual offenses (vaginal, digital and anal rapes) and their aggressive and sadistic nature (binding, threatening, using force on several victims, including a knife), and that he took pornographic pictures of at least one of the four girls. Blanchette's antisocial personality disorder is, in Tomich's view, evidenced by the aforesaid repetitive sexual offenses and by Blanchette's aggressive behavior while in prison as set forth in the Department of Correction disciplinary reports.

The expert also based his opinion of "sexual dangerousness" upon Blanchette's personal history (which indicated that he was raised in orphanages until age ten or eleven, was physically abused by his stepmother, and was beaten and threatened with knives -- the latter behavior being replicated in some of Blanchette's later sexual offenses), that Blanchette had attempted suicide on several occasions, that he had a record of disciplinary problems while in prison, some for aggressive

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behavior, and that, while incarcerated, Blanchette had refused to undergo sex offender treatment.

On cross-examination, the expert was examined closely on the meaning of the term "antisocial personality disorder." He indicated that it is a lack of regard for social norms evidenced since adolescence, a disregard for the safety of himself and others, aggressiveness, impulsivity, and a pattern of criminal behavior. When queried as to whether the disorder had evidenced itself in Blanchette since adolescence, Tomich acknowledged that no reference to such a disorder appeared in the report of the two examinations done of Blanchette in 1987 by a qualified examiner. As to impulsivity, Tomich saw it evidenced in several suicide attempts during the 1980's as well as in two instances of misconduct for which he received disciplinary reports, namely (a) a 1986 incident in which Blanchette got into a verbal altercation with a correction officer, after which he made a disrespectful gesture and remark to the officer; and (b) a 1995 incident where Blanchette used a pool cue to break some screens, for which he was fined fifty dollars. With regard to the asserted pattern of criminal conduct, Tomich acknowledged that Blanchette's criminal record consisted only of the four sex crimes for which he had been incarcerated -- his sentence having begun when he was about forty years old -- and a motor vehicle offense for which he had served three months in prison. The expert noted that Blanchette sought individual therapy between 1982 and 1984 for possible sexually abusive behavior but declined to undergo sex offender treatment while incarcerated.

The judge's findings and rulings. The judge recited facts underlying the 1984 indictments for which Blanchette was incarcerated that she took from her independent review of the police reports in evidence. She also summarized the expert's testimony, and, after herself reviewing the records in evidence that the expert had relied upon, noted that certain records did not bear out aspects of the expert's testimony. In that regard, the judge found that the Department of Correction records did not reflect a significant disciplinary record and that there was

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only one documented suicide attempt by Blanchette at the beginning of his incarceration, not four such attempts. [Note 7]

The judge ruled that the Commonwealth had not satisfied its burden of presenting enough evidence to establish probable cause to believe that Blanchette remains sexually dangerous, i.e., it had not presented "sufficient evidence for a reasonable jury to find, beyond a reasonable doubt, the predicate facts to establish sexual dangerousness: specifically, that Blanchette has a 'mental abnormality' or a 'personality disorder,' as those terms are defined in the statute, making him 'likely' to engage in sexual offenses if not confined."

The judge noted that the Commonwealth's expert had testified "summarily" as to Blanchette's mental abnormality and personality disorder, observing that

"[t]here is scant evidence to support this opinion, other than the fact of the convictions themselves . . . . [T]he Commonwealth provides insufficient evidence of the alleged acts which form the crucial support for their conclusion that Blanchette qualifies as an SDP. They conflate the statutory standard of probable cause by merely stating that because Blanchette committed sexually aggressive crimes, he should qualify as an SDP. . . . Acknowledging that 'pedophilia symptoms' can be unassessable while in prison, the Court . . . can find no evidence of severe assaultive behavior, outward sexual misbehavior, or obsessive or compulsive behavior by Blanchette while imprisoned. Five disciplinary reports over 15 years is an exemplary behavior

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record in prison. Blanchette's records indicate no mental health problems."

The Commonwealth's position. On appeal the Commonwealth urges the view that the judge misunderstood and misapplied the Bruno "directed verdict" standard for § 12(c) determinations of probable cause. It maintains that it presented ample evidence to support its expert's conclusion that Blanchette fit the statutory definition of a sexually dangerous person. It argues in this regard that the judge misapprehended the quantum of evidence necessary to satisfy the directed verdict standard and misapplied the standard (a) in failing to view the evidence in the light most favorable to the Commonwealth, instead evaluating and disputing the expert's testimony and the grounds for it, and (b) in discrediting the expert's testimony such that the judge mistakenly concluded that Tomich's opinion was based exclusively on Blanchette's prior criminal acts of sexual misconduct when it was in fact based on other factors as well.

The § 12(c) "directed verdict" standard. In Bruno, the Supreme Judicial Court provided an overview and clarification of the statute, as amended in 1999. It noted that the focus of the statutory definition of "sexually dangerous person" and of the statute's various procedural sections governing commitment is a defendant's "current mental condition." Bruno, supra at 498. Because of the potential deprivation of liberty to those persons subjected to civil commitment proceedings under the statute, due process protections must apply to such proceedings, notwithstanding the civil nature of G. L. c. 123A. See id. at 507- 510.

While the § 12(c) probable cause hearing is a preliminary hearing, due process considerations caused the court to reject the Commonwealth's contention that it need only be held to a "probable cause to arrest" standard of proof, as in a preliminary parole revocation hearing or in a grand jury proceeding. See Bruno, supra at 509-510. Because § 12(c) calls for an "adversary proceeding conducted in a formal manner before a judge in the Superior Court, not unlike a trial," id. at 509, involving the right to counsel, the right to confront and cross-examine witnesses, and the right to call witnesses, and because its goal is to determine whether to hold a defendant for further

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proceedings, the court viewed the § 12(c) hearing as being more analogous to a District Court bind-over hearing held pursuant to G. L. c. 276, § 38. See id. at 510. In such a bind-over hearing, the Commonwealth's burden of proof is the "directed verdict" standard referred to and explained in Myers v. Commonwealth, 363 Mass. 843 , 850 (1973).

The primary function of the District Court bind-over hearing is to screen out at an early but critical stage those cases that should not go to trial, thereby sparing individuals from being held and unjustifiably prosecuted. See Myers, 363 Mass. at 847. The judge's chief task is to "determine whether there is sufficient credible evidence which justifies binding the defendant over," Myers, supra, and this determination "is somewhat analogous in function to the trial court's ruling on a motion for a directed verdict as to whether there is sufficient evidence to send the case to the jury." Ibid. The judge should "view the case as if it were a trial and he were required to rule on whether there is enough credible evidence to send the case to the jury." Id. at 850. "The minimum quantum of evidence . . . is more than that for probable cause to arrest but less than would 'prove . . . guilt beyond a reasonable doubt' " (citations omitted). Ibid.

The centrality of the screening function, moreover, "can only be effectuated by an adversary hearing where the defendant is given a meaningful opportunity to challenge the credibility of the prosecution's witnesses and to raise any affirmative defenses he may have." Id. at 852. What this unavoidably entails for the hearing judge is that she make some assessment of the credibility of the evidence that is presented when making the determination as to whether sufficient evidence has been presented to warrant further proceedings. [Note 8] This is an exercise requiring a very deft touch and considerable restraint on the

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part of the judge. The proceeding is a preliminary one, and the evidence, of necessity, is often quite hastily cobbled together; to expect a trial-quality presentation would be unrealistic and contrary to the role which the hearing plays in the over-all scheme. The preliminary nature of the hearing -- to be followed in many instances by trial, in the case of a bind-over hearing, and by a sixty-day commitment for evaluation and then possible trial, in the case of a c. 123A, § 12(c), probable cause hearing -- dictates that ultimate credibility determinations are ordinarily to be reserved for a subsequent trier of fact.

"[T]he judicial role in pretrial screening involves weighing and judgment rather than a wooden comparison of the testimony with the elements of the crime. Although credibility ordinarily is a matter for the jury, and it is not expected that judges will normally resolve testimonial conflicts at the preliminary hearing, cases do occasionally arise in which a witness's testimony is so weak or contradicted by sufficiently clear facts that the judge should have the power to dismiss the case."

Myers v. Commonwealth, 363 Mass. at 853 n.12, quoting from A Model Code of Pre-Arraignment Procedure (T.D. No. 5) at 91 (Model Code). At the same time, the judge's role remains considerably greater at such a hearing than that of the proverbial potted plant: to make the requisite determination, the judge must be permitted to consider "the credibility of the witnesses and the quality of the evidence introduced." Myers, supra at 853, quoting Model Code, § 330.5(3). [Note 9]

Taking into account the preliminary nature of the § 12(c)

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probable cause hearing, the screening function that the hearing performs, the substantial public safety and liberty interests that are at stake, and the need to consider not only the Commonwealth's evidence but also the cross-examination of witnesses by the defendant and any evidence he may introduce, we are of the opinion that implementation of the "directed verdict" decision-making process requires a two-part inquiry, one part of which is quantitative and the other qualitative. The judge must be satisfied, first, that the Commonwealth's admissible evidence, [Note 10] if believed, satisfied all of the elements of proof necessary to prove the Commonwealth's case. Second, she must be satisfied that the evidence on each of the elements is not so incredible, insubstantial, or otherwise of such a quality that no reasonable person could rely on it to conclude that the Commonwealth had met its burden of proof. The second part of the inquiry, of necessity, involves, inter alia, an assessment of credibility. In conducting this credibility assessment, the judge is not to look to whether she is herself persuaded by the evidence. Instead, the judge is to determine whether the evidence before her is of suitable quality to allow the action to proceed further along a course that was legislatively designed ultimately to place the matter before a trier of fact.

Analysis. Given the statutory scheme, the § 12(c) probable cause hearing, much like the District Court bind-over hearing -- its functional and procedural analogue, but not its twin -- has as its central function the screening out of meritless petitions brought by district attorneys under § 12(b). The district attorneys make their determinations of what petitions to bring -- of selecting which persons convicted of statutorily enumerated sexual crimes are sexually dangerous and thus likely recidivists -- without the benefit of explicit statutory guidelines. Given available statistics about the relationship between pedophilia

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and recidivism, persons who have committed sexual crimes against youngsters and who are regarded as potential pedophiles are doubtless often likely candidates for such petitions. [Note 11] The challenge presented to judges is to screen out those petitions that, while meeting some eligibility criteria such as conviction of certain prior sex crimes, do not meet other statutory criteria. Section 1 of the statute identifies those elusive criteria.

As relevant here, a "sexually dangerous person" includes one who has been "convicted of . . . a sexual offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in sexual offenses if not confined to a secure facility." G. L. c. 123A, § 1. A "mental abnormality" in turn is defined as "a congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." Ibid. A "personality disorder" is defined as "a congenital or acquired physical or mental condition that results in a general lack of power to control sexual impulses." Ibid. See Kansas v. Crane, 534 U.S. 407 (2002).

In the hearing at issue, the judge was required to determine if probable cause existed to believe that Blanchette is a sexually dangerous person. The two-part inquiry, discussed above, required that she determine whether (a) the Commonwealth's evidence, if believed, satisfied all the elements it was required to prove in order to demonstrate that Blanchette was then sexually dangerous; and (b) the evidence satisfying those elements was not so incredible, insubstantial, or otherwise of such a quality that no reasonable person could rely on it to conclude that the Commonwealth had proven Blanchette then sexually dangerous.

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The Commonwealth provided the judge with evidence that it thought at the time sufficient to meet a lower burden of proof than Bruno later decreed necessary for § 12(c) probable cause hearings. The judge was not unwarranted in thinking the evidence before her scant. It was for the Commonwealth to prove affirmatively that Blanchette had the requisite current mental condition(s) which, as a "predictive behavioral question," make it likely that Blanchette will reoffend. Bruno, supra at 510-511. The expert stated, to be sure, that Blanchette suffers from a mental abnormality (pedophilia) and from a personality disorder (antisocial personality disorder) and was likely to reoffend if not in a secure facility. The Commonwealth's expert touched the formulaic statutory bases in his testimony and alluded to the data upon which he relied in forming his opinions, but the judge was not, as the Commonwealth would have it, limited to a "wooden comparison" of his testimony with the statutory elements. Her role included the "weighing and judgment" that Myers alluded to, and that we have described as a qualitative assessment of the evidence. She received precious little assistance in this task.

On direct examination, for example, the expert was neither asked to nor did he articulate the accepted diagnostic criteria for pedophilia and antisocial personality disorder, explain how the data upon which he relied satisfied some or all of the diagnostic criteria, discuss in what respect Blanchette's pedophilia was a condition meeting the statutory criteria for "mental abnormality" (including how it would create a predisposition to the commission of criminal acts), or in what way Blanchette's antisocial personality disorder was a "personality disorder" as defined in the statute (including how it might result in a general lack of power to control sexual impulses). The expert made no attempt to explain the clinical basis for linking Blanchette's past history and conduct, sexual and otherwise, with present or future behavior so as to produce the diagnosis of a currently sexually dangerous person. Otherwise put, the expert did not do much to explain his opinion on a reasoned basis that would allow evaluation of that opinion on its merits.

The expert was, moreover, subjected to cross-examination which arguably revealed certain vulnerabilities in the personality

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disorder prong of his opinion. There is also the matter of the expert's reliance upon certain records, notably prison disciplinary reports, for aspects of his opinion, the reasonableness of which the judge questioned given her own evaluation of those records. Although the Commonwealth suggests that the judge improperly "substituted" her own opinion for the expert's as to what the records signify, we think it entirely appropriate for the judge to have assessed the weight and over-all reliability and credibility of the expert's opinion by measuring it against matters already known to her. A Superior Court judge sees prison disciplinary reports as a matter of course in her job, and this experienced judge was surely in a position to make an informed assessment of the reports as to Blanchette. That her assessment differed from that of the Commonwealth's expert could properly factor into her determination of how credible that expert's testimony was and how much qualitative heft it could be accorded, just as the fact that the expert had never examined Blanchette could properly be part of such a calculus.

Nonetheless, the judge never expressly indicated that she did not credit the expert's conclusion. The Commonwealth's point is also well taken that the judge appears to have reduced the grounds for the expert's opinion only to Blanchette's prior sex crimes, ignoring in the process other factors which he considered when forming his opinion, such as Blanchette's personal history and Blanchette's decision, while incarcerated, to decline sexual offender treatment. As to the latter, the Supreme Judicial Court cogently observed in In re Hill, 422 Mass. 147 , 157 (1996), that

"[e]xamples of recent conduct showing sexual dangerousness may often be lacking where the individual's dangerous disposition is of a sort that there will be no occasion for that disposition to manifest itself in a secure environment. And it cannot be the case that an individual's refusal to submit to examination or to participate in treatment, in which his current dispositions might manifest themselves, will more or less automatically guarantee himself a favorable determination."

The Commonwealth is also correct in observing that the judge's

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findings do not take into account the remaining exhibits in evidence. Finally, and perhaps most importantly, it appears from the judge's findings that she proceeded on the premise that she was required to determine whether she herself was persuaded by the Commonwealth's evidence, rather than, as we have discussed, whether that evidence was qualitatively of such a character that no reasonable person could rely on it to conclude that the Commonwealth had demonstrated probable cause that Blanchette was then sexually dangerous. In so doing, she may well have applied to the evidence a more rigorous qualitative standard than is appropriate. In view of these deficiencies and given the pre-Bruno timing of the § 12(c) hearing at issue, with its concomitant uncertainty as to the applicable burden of proof, we think the interests of justice will best be served by vacating the judgment of dismissal and remanding the case to the judge for an expeditious reevaluation of the evidence and such further proceedings consistent with this opinion as she may deem appropriate. The stay of Blanchette's release is continued pending the judge's further consideration of the matter.

So ordered.