Appellant challenges "catch-all" Factor 37 use in registry hearing; board defends examiner's judgment

Attorney Ethan Stiles, representing an appellant whose case is impounded, told the Appeals Court that the hearing examiner at the offender registry improperly used Regulation Factor 37 (a catch-all "other useful information" factor) to elevate risk because the examiner treated a long interval between offenses as if it were an empirically validated risk marker.

Stiles said the examiner effectively backdoored Factor 2 (repetitive and compulsive conduct) by using Factor 37 to treat a lengthy gap between offenses as probative of dangerousness without citing scientific literature. He urged the court to remand for a new hearing because the board relied on a pseudo-scientific inference rather than empirically validated risk factors.

David Schneider, counsel for the board, and other panelists discussed the evidentiary posture and the Hansen desistance studies cited in argument. Schneider said the hearing examiner's decision reflected a qualitative fact-driven judgment and highlighted the practical problem that the examiner often cannot know how many undetected offenses may have occurred in the gap between convictions.

The parties and the panel debated whether a long gap between convictions can be used, in some circumstances, to weigh toward a higher risk finding or whether such a use requires citation to empirical validation. The board acknowledged waiver issues (the appellant did not raise the argument below) but also said the court has discretion to review whether the examiner abused that discretion.

The appeals panel heard argument and took the case under advisement.