Appeals court weighs whether trial counsel's choices denied Anthony Austin chance to present favorable risk evidence

Edward O’Brien, arguing for appellant Anthony Austin, told the Massachusetts Appeals Court that Austin — held under civil commitment statutes and serving an indeterminate sentence — was denied the opportunity to present material expert and record evidence at trial. O’Brien said trial counsel failed to call a defense expert, Dr. Bard, and did not press recent prison‑treatment records showing improved compliance and reduced imminent risk; he argued that omission deprived Austin of a full defense and warranted de novo appellate review.

O’Brien also criticized how static risk labels were described to the factfinder, noting that a static‑99 score of 6 commonly appears as a 17 percent risk of reoffense in five years and that newer categorical labels ("well above average," "above average") risk misleading impressions without context. "That's a 17 percent risk of reoffense within five years," O’Brien said as he stressed how labels and phrasing influence decisionmakers.

The Commonwealth, represented by Jocelyn McGrath, defended the trial record and argued that the prosecutor experts had already described the defendant’s recent compliance and that the trial judge and record showed no prejudice from the defense counsel’s tactical choices. McGrath invoked case law distinguishing counsel strategy from constitutionally ineffective performance and said the record supported the denial of relief.

The panel questioned whether counsel’s choice not to call an expert could be classified as strategic and whether the trial judge’s findings adequately addressed material evidence. The matter was submitted to the court for decision.