Appeals court hears challenge to Level 3 classification in John Doe case

At an oral argument before the Massachusetts Appeals Court, the appellant in John Doe v. Offender Registry Board asked the court to lower a Level 3 sex-offender classification or remand the case for a new classification hearing, arguing the hearing examiner improperly denied funds for an expert and relied on an evaluative "ultimate risk" opinion without live testimony.

The issue matters because a Level 3 classification triggers Internet dissemination of an offender's information and carries heightened public-safety consequences; the appellant said the record did not support the required clear-and-convincing showing of high risk.

Attorney Simara Hernandez, representing the appellant, told the panel that the board placed a 2020 evaluation into evidence that included results from physiological testing (PPG) and language noting the evaluator's view that the appellant "meets the criteria for pedophilic disorders" under the DSM-5. Hernandez argued those materials raised a clinical question beyond common knowledge and that the hearing examiner abused discretion by denying a motion for funds so the appellant could hire an expert to confirm or rebut the evaluator's findings. "He should have been allowed funds to hire an expert to determine whether or not he suffers from this disorder," Hernandez said.

Hernandez also contended the hearing examiner improperly relied on the evaluation's reported actuarial scores to reach an "ultimate risk" finding without calling the report's authors as witnesses, in tension with factor 35 of the board's governing framework. She pointed to specific passages in the hearing record in which the examiner wrote that "combined scores of the test place the Doe at the above average risk to reoffend," and said adopting that conclusion without live expert testimony was error.

On the statutory-factor side, Hernandez pressed that the examiner erred by applying risk-elevating factor 16 (public place). The charged conduct occurred in two rooms in a basement of the appellant's mother's house, with closed doors, and Hernandez said those spaces were not maintained for or used by the public and carried an expectation of privacy. She argued the examiner's minimal-weight finding on factor 16 was not harmless when combined with other claimed errors and that mitigating factors applied: only one governing offense more than two decades old, no prior sexual or violent convictions, the appellant's acceptance of responsibility, long probation (10 years), advanced age at hearing (55), and documented participation in sex-offender treatment (progress to stage 3 as of May 2021), which Hernandez cited under mitigation factors 28, 30 and 32.

Counsel for the board, David Shania, responding for the Attorney General's office, said the hearing examiner did not adopt a diagnosis of pedophilia and had limited or excluded consideration of the PPG results. "I personally believe that, you know, all these cases should be go through the full cycle of of appellate level," Shania said while noting he had raised a procedural question about the timing of the appeal for the court's consideration. He argued the hearing examiner permissibly relied on documentary actuarial testing while declining to adopt any evaluator's ultimate risk opinion, and that the examiner gave only minimal weight to factor 16 in light of the evidence the appellant sought to conceal conduct and had videotaped material that later came into the mother's possession.

Both sides were asked by the panel whether published precedent squarely resolved (1) whether an examiner may rely on an evaluator's ultimate-risk language absent live testimony and (2) whether the basement bedroom and closet qualified as a "public place" under factor 16. Neither counsel identified a directly controlling decision resolving those precise questions; Hernandez said she had not found a controlling case and Shania said he could not recall a single on-point opinion off the top of his head.

The panel questioned counsel about the timeliness of the appeal; the board's brief flagged possible anomalies in the docketing dates (the record shows a judgment entry dated Dec. 7, 2022, and a certification section dated June 2023), and counsel acknowledged the appeal-timing issue but did not press a concession at argument. The court also confirmed it would not allow rebuttal and reminded counsel of the 15-minute argument limit.

After hearing argument and posing follow-up questions, the panel took the case under advisement. "Argument is now taken, under advisement, and the court will be in recess," the court said.

No decision was announced at the hearing; the Appeals Court record will reflect the court's subsequent ruling or order.