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Appeals court weighs fairness of denying expert funds in sex-offender registry hearing
Summary
An appellant challenging the Sex Offender Registry Board’s (SORB) level found the hearing examiner denied requested expert funding and relied on treatment-center risk assessments; appellant counsel argued denial made the hearing unfair and sought remand for a new hearing.
The appeals panel heard argument in John Doe v. Sex Offender Registry Board (docket 24P357) about whether a hearing examiner’s denial of funds for a defense expert rendered the SORB hearing unfair and arbitrary.
Rebecca Rose, counsel for the appellant, told the court the hearing examiner allowed the board to present treatment-center assessments that linked the appellant’s sexual conduct to risk and “deviance,” but would not permit the appellant to hire an expert to rebut those conclusions. Rose argued that denial of expert funds deprived her client of a fair opportunity to confront and counter the expert-based evidence; she asked the court to remand for a new hearing.
Nut graf: The dispute turns on whether the examiner improperly relied on expert and treatment records tying particular sexual conduct to risk factors without allowing the subject of the hearing to obtain funding for a rebuttal expert. The denial implicates SORB’s statutory factor framework (including discussion in argument of “factor 37,” Stable/Static risk assessments and other enumerated factors) and raises procedural-due-process and harmless-error questions.
The board’s lawyer, David Shanae, defended the examiner’s decision, saying the hearing record contained substantial evidence and that expert funds were not required because the examiner’s reliance on the treatment records and the Stable-2007 risk assessment was appropriate. He urged the court to allow the examiner’s weighing of factors to stand. The justices pressed both sides on the precise manner the examiner referenced the appellant’s sexual conduct in the opinion and whether that connection was dispositive of risk level.
Rose told the panel the examiner referenced the conduct repeatedly and that the examiner’s narrative gave it weight across multiple factors — an approach she called pervasive and unfair without an opportunity to present a rebuttal expert. She emphasized the proceedings required the examiner to weigh the number and seriousness of supervision violations and other factors, and she argued several factors were misapplied or not carefully considered.
Shanae said the board had no obligation to provide expert funding in this instance and that even if some factors were misapplied, any error would be harmless in light of the totality of the record and empirically validated risk indicators.
Ending: The justices said they would take the issues under advisement. Counsel were informed that the Supreme Judicial Court had pending related questions about how certain factors are applied in future cases; the panel took the matter on the briefs and argument.
