The Massachusetts Sexually Dangerous

Persons Statute: A Critique of the

Unanimous Jury Verdict Requirement

WIDMAIER MARCUS CHARLES*

Introduction

In 1999, the Massachusetts Legislature (“Legislature”) enacted an

“emergency law” to protect the “vulnerable members” of the
Commonwealth from “sexual offenders.”1 The sexually dangerous persons
(“SDP”) statute, Mass. Gen. Laws c. 123A, provides for the civil
commitment and treatment of sexually dangerous persons for an
indeterminate period of one day to life, and it explicitly requires a
unanimous jury verdict for a finding of sexual dangerousness. 2 However,
the SDP statute does not specify the proper course of action in
circumstances where a jury is unable to reach a unanimous verdict, and it
is silent as to the proportion of jurors necessary to find that an individual is
not sexually dangerous.3 In Commonwealth v. G.F.,4 the Massachusetts
Supreme Judicial Court (“SJC”) concluded that, in circumstances in which
a person who was the subject of an SDP petition and who had endured
three mistrials due to jury deadlock, the SDP statute permits a fourth retrial
because the Legislature, when crafting the SDP civil commitment scheme,
chose not to supersede the common law with regard to the procedure
following a mistrial.5 Further, the SJC concluded that, absent clear
legislative intent, the SDP statute cannot be read to permit a less than

* Widmaier Marcus Charles is an Assistant Attorney General at the Massachusetts Attorney

General’s Office. This article represents the opinions and legal conclusions of its author and
not necessarily those of the Office of the Attorney General. Opinions of the Office of the
Attorney General are formal documents rendered pursuant to specific statutory authority.
1 1999 Mass. Acts 74, § 8.
2 MASS. GEN. LAWS ANN. ch. 123A, § 14(d) (West 2010).
3 See id.
4 479 Mass. 180 (2018).
5 Id. at 190–93.

101
102 New England Law Review [Vol. 53

unanimous jury verdict.6

Part I of this Comment will (a) briefly summarize the SDP statute’s
purpose and provide the statutory definition of “sexually dangerous
person,” (b) outline the SDP statute’s procedural standards, and (c) discuss
the constitutionality of the SDP statute. Part II will provide an overview of
the SJC’s opinion in the case of Commonwealth v. G.F.,7 which affirmed the
denial of G.F.’s motion to dismiss the Commonwealth’s SDP petition and
reversed the trial judge’s ruling regarding the number of jurors needed to
render a verdict of not sexually dangerous at G.F.’s fourth SDP trial.8 Part
III will argue that the Legislature ought to consider amending the SDP
statute to provide that jury deadlock after three SDP mistrials will result in
dismissal, rather than retrial, because at some point one must say enough is
enough when civil rights are at stake. Part IV will argue that although the
SJC appropriately applied the law in concluding that the SDP statute
cannot be read to permit a less than unanimous jury verdict, the
Legislature ought to alternatively consider amending the SDP statute to
provide that a unanimous verdict is required to find an individual sexually
dangerous, but only ten votes are needed to find that he is not
(“asymmetrical jury verdict”), which, in effect, would limit the number of
times the Commonwealth can seek an SDP finding.

I. Background

A. The Purpose of the SDP Statute and the Statutory Definition of

Sexually Dangerous Person

In response to increased pressure from the public and the media, 9 the
Legislature enacted the SDP statute, Mass. Gen. Laws ch. 123A, to protect
the “vulnerable members of our communities” from sexually dangerous
persons.10 Under the SDP statute, a “sexually dangerous person” is
defined, in relevant part, as:
[A]ny person 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 . . . and whose misconduct in sexual matters
indicates a general lack of power to control his sexual

6 Id. at 201–03.
7 479 Mass. 180 (2018).
8 Id. at 203.

9 See generally Michelle Johnson, The Supreme Court, Public Opinion, and the Sentencing of

Sexual Predators, 8 S. CAL. INTERDISC. L.J. 39 (1998) (discussing public and media influences on
courts and legislatures to pass laws that deal harshly with convicted sex offenders).
10 1999 Mass. Acts 245, 245.
2019] MA Sexually Dangerous Persons Statute: A Critique 103

impulses, as evidenced by repetitive or compulsive

sexual misconduct by either violence against any victim,
or aggression against any victim under the age of 16
years, and who, as a result, is likely to attack or
otherwise inflict injury on such victims because of his . . .
uncontrollable desires.11
In enacting the SDP statute, the Legislature employed strict language
and set forth strict procedures,12 as outlined below, because it was
“concern[ed] with protecting the public from harm by persons . . . who are
likely to be sexually dangerous.”13

1. The Procedural Standards of the SDP Statute

When the Commonwealth contends that a prisoner is a sexually

dangerous person, it may file a petition seeking to civilly commit the
individual following his or her release from custody.14 A judge then
conducts a hearing to determine if probable cause exists to believe the
person is sexually dangerous.15 If the judge finds probable cause to believe
the person is sexually dangerous, then the person is committed to a
treatment center for a period not exceeding sixty days for the purpose of
examination and diagnosis under the supervision of two qualified
examiners.16 Within forty-five days, each qualified examiner must provide
the court with a written report summarizing his or her diagnosis and
stating whether, in their professional opinion, the individual is sexually
dangerous.17 The Commonwealth then has fourteen days from the date the
reports are filed to decide whether to petition the court for a trial.18
The trial to determine sexual dangerousness must begin within sixty
days after the Commonwealth files an SDP petition. 19 But as a practical
matter, such trials are held a year or more after the petition is filed.20
During this time, the individual may be temporarily confined.21 If the
individual is found to be sexually dangerous by a unanimous jury at the

11 MASS. GEN. LAWS ANN. ch. 123A, § 1 (2010).

12 See Commonwealth v. Knapp, 441 Mass. 157, 159 (2004).
13 Commonwealth v. Bruno, 432 Mass. 489, 504 (2000).

14 MASS. GEN. LAWS ANN ch. 123A, § 12(a)–(b) (2010).

15 Id. § 12(c).

16 Id. § 13(a).

17 Id.

18 Id. § 14(a).

19 Id.

20 Douglas Ankney, Massachusetts Supreme Court: Discharge from Civil Commitment Required

When Examiners Conclude Defendant Is Not Sexually Dangerous, 2 CRIM. LEGAL NEWS 1, 30 (2019).
21 MASS. GEN. LAWS ANN ch. 123A, § 14(e).
104 New England Law Review [Vol. 53

ensuing trial, he or she is committed to a treatment center for an

indeterminate period of one day to life.22 Once committed, the individual
may petition for discharge only once every twelve months.23

2. The Constitutionality of the SDP Statute

“[I]t is beyond question that the Legislature has a compelling interest

in protecting the public from sexually dangerous persons.”24 The SJC, in
turn, repeatedly has affirmed the statute’s balancing of defendants’ rights
and the goal of protecting public safety. 25 Additionally, the SJC has
consistently concluded that confinement pending an SDP trial is
constitutional because the commitment is temporary, and the SDP statute
requires an expedited timeline for trial.26 Thus, civil commitment of an
individual who potentially poses a threat to public safety does not violate
substantive due process, as long as that commitment takes place according
to proper procedures and evidentiary standards outlined in the SDP
statute. 27

II. Court’s Opinion

A. Massachusetts Courts Have the Statutory and Constitutional

Authority to Hold a Fourth Trial on the Commonwealth’s Petition to
Commit an Individual as a Sexually Dangerous Person Under the
SDP Statute

1. Factual Background of Commonwealth v. G.F.

In 1980, G.F. pleaded guilty in California Superior Court to lewd and

lascivious conduct upon a child for sexually molesting a friend’s thirteen-
year-old and eleven-year-old daughters.28 In 1982, while on probation for
those offenses, G.F. sexually molested a friend’s thirteen-year-old daughter
at knifepoint.29 He pleaded guilty in California Superior Court to lewd and

22 Id. § 14(d).
23 Id. § 9.
24 Commonwealth v. Burgess, 450 Mass. 366, 376 (2008).

25 See, e.g., Commonwealth v. Pariseau, 466 Mass. 805, 811–12, 814 (2014); Commonwealth

v. Nieves, 446 Mass. 583, 594–95 (2006) (citing Kansas v. Hendricks, 521 U.S. 346 (1997)).
26 See, e.g., Pariseau, 466 Mass. at 811 n.8; Commonwealth v. Blake, 454 Mass. 267, 268, 278

(2009) (Ireland, J., concurring); Commonwealth v. Knapp, 441 Mass. 157, 168 (2004); see also
Gangi v. Commonwealth, 462 Mass. 158, 160 (2012) (“Among the rights afforded an
individual subject to confinement under [Mass. Gen. Laws ch.] 123A are strict procedural
deadlines governing commitment proceedings.”).
27 Commonwealth v. Fay, 467 Mass. 574, 584 (2014).
28 Commonwealth v. G.F., 479 Mass. 180, 182 (2018).
29 Id.
2019] MA Sexually Dangerous Persons Statute: A Critique 105

lascivious conduct upon a child by force with the use of a deadly weapon.30
In 1992, G.F. agreed to sufficient facts in Massachusetts District Court to
support convictions of, among other charges, open and gross lewdness and
assault by means of a dangerous weapon. 31 In 1993, G.F. pleaded guilty in
Massachusetts Superior Court to three counts of child rape, among other
charges, for repeatedly raping his girlfriend’s six-year-old daughter while
she was bound and gagged.32 The child reported that, on one occasion, G.F.
forced her and her four-year-old sister to perform fellatio upon him.33 G.F.
was sentenced to concurrent terms of fifteen-to-twenty years on each of the
1993 rape charges and concurrent terms of five-to-ten years on each of the
other charges.34

2. Procedural History Related to G.F.’s Three Mistrials

Shortly before G.F.’s sentences were to end, the Commonwealth

retained a qualified examiner to evaluate G.F. 35 In December 2010, the
examiner determined that G.F. suffers from pedophilia, a mental
abnormality as defined in the SDP statute, as well as antisocial personality
disorder, resulting in an inability to control his sexual impulses. 36 The
examiner concluded that if G.F. were to be released from prison, both his
mental abnormality and personality disorder would make it highly likely
that he would recidivate sexually.37
In January 2011, as a result of the examiner’s findings, the
Commonwealth moved to commit G.F. to the Massachusetts Treatment
Center (“treatment center”) pending a probable cause hearing pursuant to
Mass. Gen. Laws ch. 123A, § 12(e).38 In February 2011, G.F. waived his right
to a hearing and stipulated that there was probable cause to believe that he
was sexually dangerous.39 In March 2011, the Commonwealth filed an SDP
petition for trial pursuant to Mass. Gen. Laws ch. 123A, § 14(a). 40

30 Id.
31 Id.
32 Id.

33 Id.

34 G.F., 479 Mass. at 182.

35 Id.; see also MASS. GEN. LAWS ANN. ch. 123A, § 1 (West 2010) (defining “qualified

examiner” as a licensed physician certified in psychiatry or a licensed psychologist; provided,

however, that the examiner has had two years of experience diagnosing or treating sexually
aggressive offenders).
36 G.F., 479 Mass. at 182–83.
37 Id. at 183.
38 Id.
39 Id.
40 Id. at 184.
106 New England Law Review [Vol. 53

Following the Commonwealth’s SDP petition for trial, G.F. sought to

postpone his trial and related proceedings on several occasions. 41 In April
2011, G.F. told his attorney that he did not want a trial to be held right
away because he needed time to “‘counter[] the [S]tate [qualified examiner]
reports’ and to ensure that his experts had sufficient time to interview
him.”42 G.F. subsequently requested that his trial, then scheduled for
December 2012, be postponed until February 2013.43 In April 2013, more
than two years after the Commonwealth filed its SDP petition, G.F.’s first
SDP trial took place.44 He was fifty-five years old.45 After four days of trial,
the jury deliberated for two days but could not reach a unanimous
verdict.46 Therefore, the judge declared a mistrial.47 After the first mistrial,
G.F.’s newly-appointed lawyer experienced medical complications, and
several pretrial conferences and hearings were subsequently postponed. 48
In March 2014, G.F.’s second SDP trial took place over a two-week
period.49 At the end of the trial, the judge declared a mistrial because the
jury was once again unable to reach a unanimous verdict. 50 After the
second mistrial, G.F. repeatedly requested that his third trial be continued
due to his attorney’s medical complications.51 The trial was subsequently
postponed from May 2014 until January 2016. 52 In January 2016, G.F.’s
third SDP trial took place and he asked the judge to instruct the jury that a
unanimous verdict was required to find him sexually dangerous, but that
only ten votes were needed to find that he was not sexually dangerous
(“asymmetrical jury instruction”).53 The judge denied the request.54 G.F.’s
third SDP trial again ended in a mistrial when the jury was unable to reach
a unanimous verdict.55 One juror sent the judge a note about G.F.’s decision
not to speak with a qualified examiner prior to the third trial, expressing
his view that, by refusing to be available for interviews with qualified

41 Id. at 193.
42 G.F., 479 Mass. at 184, 193.
43 Id. at 193.
44 Id. at 185.
45 Id.
46 Id.
47 Id.
48 G.F., 479 Mass. at 193.
49 Id. at 186.
50 Id.
51 Id. at 193.
52 Id.
53 Id. at 187.
54 G.F., 479 Mass. at 187.
55 Id.
2019] MA Sexually Dangerous Persons Statute: A Critique 107

examiners, G.F. could “virtually guarantee” a mistrial.56

The Commonwealth moved for a fourth trial, and the trial judge set a
trial date for May 2016.57 Prior to the start of his fourth SDP trial, G.F. filed
a motion to modify the terms of his confinement given that he remained in
custody for over five years by that time without a finding of sexual
dangerousness.58 The Commonwealth opposed that motion.59 In February
2016, prior to G.F.’s fourth trial, the trial judge changed his view as to the
asymmetrical jury instruction, stating that he would instruct the jury that
only ten votes were required to find that G.F. was not sexually dangerous,
if G.F. so requested.60
The Commonwealth filed a notice of interlocutory appeal as to the
decision regarding the asymmetrical jury instruction. 61 G.F. also requested
that his fourth trial, then scheduled for May 2016, be continued due to his
counsel’s health.62 In August 2016, for reasons not apparent in the opinion,
a single justice of the Massachusetts Appeals Court denied without
prejudice the Commonwealth’s petition for leave to appeal from the
asymmetrical jury instruction.63 Then, in October 2016, a few days before
the scheduled fourth trial date, a single justice of the Massachusetts
Appeals Court stayed the trial.64 A Superior Court judge subsequently
concluded that continued confinement would violate G.F.’s substantive
due process rights and ordered G.F.’s release pending trial, but stayed that
order pending appellate review.65 After consolidation of certain
interlocutory rulings in the Massachusetts Appeals Court, the SJC on its
own initiative transferred the case from the Massachusetts Appeals Court
to determine, among other things, whether a fourth trial may be conducted
in G.F.’s case.66

3. The SDP Statute Permits a Fourth Trial After Three

Mistrials

In G.F., the SJC held that the SDP statute permits a fourth trial because
although “the oppressive misuse of multiple commitment proceedings

56 Id.
57 Id.
58 Id. at 181, 187–88.
59 Id. at 188.
60 G.F., 479 Mass. at 187–88.
61 Id. at 188.
62 Id. at 188, 194.
63 Id. at 188.
64 Id.
65 Id.
66 G.F., 479 Mass. at 188–89.
108 New England Law Review [Vol. 53

would doubtless be a violation of due process,”67 a fourth trial does not rise
to that level.68 In so holding, the SJC stated that the Legislature does not
depart from settled law without clearly indicating its intent to do so.69 The
SJC explained that, in crafting the SDP commitment scheme, the
Legislature had the power to supersede the common law. 70 However, the
Legislature had not yet done so with regard to the procedure following an
SDP mistrial.71 The SJC, in turn, reasoned that if the Legislature intended
for jury deadlock to result in dismissal, rather than retrial of an SDP
petition, “‘the wording of the statute could have easily reflected [this
intent]. It does not.’”72 The SJC, moreover, acknowledged that jury
deadlock “has long been considered the ‘classic basis’ for a proper
mistrial,”73 and permitted another trial.74
In G.F.’s case, the SJC stated that while the Commonwealth was unable
to secure a unanimous jury verdict finding G.F. to be sexually dangerous,
jury disagreement does not necessarily indicate a failure of proof. 75 Given
the potential threat to public safety, the SJC found that the
Commonwealth’s decision to retry G.F. was not an arbitrary use of
government power rising to the level of a substantive due process
violation.76 As a result, the SJC concluded that G.F. could be retried for a
fourth time.77 Moreover, in the absence of prejudice, the SJC further
concluded that dismissal of an SDP petition is not required where other
remedies (i.e., a supervised release hearing) can ensure compliance with
the requirements of due process.78

67 Id. at 191 (quoting Gomes v. Gaughan, 471 F.2d 794, 797 (1st Cir. 1973)).
68 Id. at 191–92.
69 Id. at 191 (citing Greater Bos. Real Estate Bd. v. Dep’t of Telecomm. & Energy, 438 Mass.

197, 202 (2002)).

70 Id. at 191 (citing In re McHoul, 445 Mass. 143, 147 (2005)).
71 Id. at 191.
72 G.F., 479 Mass. at 191 (quoting Rowley v. Mass. Elec. Co., 438 Mass. 798, 802 (2003)).

73 Id. (citing Commonwealth v. Phim, 462 Mass. 470, 473 (2012), quoting Blueford v.

Arkansas, 566 U.S. 599, 609 (2012)).

74 Id. (citing Downum v. United States, 372 U.S. 734, 735–36 (1963)).

75 Id. at 192 (citing In re Sheridan, 422 Mass. 776, 780 (1996)).

76 Id. at 192 (citing County of Sacramento v. Lewis, 523 U.S. 833, 836 (1998)); United States

v. Quijada, 588 F.2d 1253, 1255 (9th Cir. 1978) (holding that due process permitted third trial
after two mistrials, absent harassment by prosecutor); State v. Cordova, 128 N.M. 390, 394
(1999) (finding no per se violation of due process in third trial after two mistrials); People v.
Sierb, 456 Mich. 519, 521–22, 525 (1998) (holding that due process did not preclude third trial
after two juries were unable to reach verdict).
77 G.F., 479 Mass. at 193.
78 Id. at 198 (citing Commonwealth v. Pariseau, 466 Mass. 805, 812 (2014)).
2019] MA Sexually Dangerous Persons Statute: A Critique 109

B. A Unanimous Jury is Required in Order to Make a Finding of

“Sexually Dangerous” or “Not Sexually Dangerous”

In G.F., the SJC held that the SDP statute could not be read to permit an
asymmetrical jury verdict at G.F.’s fourth trial.79 In reaching that decision,
the SJC insisted that “[it] read[s] statutory provisions in light of the
common law and existing statutes,”80 and further stated that “[it] shall not
override the legislative mandate without a compelling constitutional
basis.”81 The SJC explained that it is mindful that Mass. Gen. Laws ch.
123A, § 14(d) explicitly refers to the requirement of a unanimous jury
verdict for a finding of sexual dangerousness, and is silent as to the
proportion necessary to reach the contrary conclusion.82 The SJC further
noted that Mass. Gen. Laws ch. 123A, § 9 provides that a person who has
been held at the treatment center for at least one year may petition
annually for release, and a verdict as to whether the individual remains
sexually dangerous may be reached by a vote of ten out of twelve jurors.83
The Superior Court judge, on the one hand, determined that the SDP
statute permits the Commonwealth’s petition to be dismissed if ten out of
twelve jurors conclude that G.F. is not sexually dangerous because he
would have spent at least one year at the treatment center by then had the
jury found him sexually dangerous at his first trial, and, as a result, G.F.
could have filed a petition for release under Mass. Gen. Laws ch. 123A, §
9.84 The SJC, on the other hand, stated that the Legislature chose to require
a less than unanimous jury verdict in Mass. Gen. Laws ch. 123A, § 9, and
not in Mass. Gen. Laws ch. 123A, § 14.85 The SJC reasoned that “‘[t]he
omission of particular language from a statute is deemed deliberate where
the Legislature included such omitted language in related or similar
statutes.’”86 Accordingly, in the absence of clear legislative intent, the SJC
held that the SDP statute cannot be read to permit an asymmetrical jury
verdict at G.F.’s fourth trial.87

79 Id. at 202.
80 Id. (citations omitted).
81 Id. (citation omitted).
82 Id. at 201.
83 G.F., 479 Mass. at 201 (citing In re Sheridan, 422 Mass. 776, 780–81 (1996)).
84 G.F., 479 Mass. at 201.
85 Id. at 202.
86 Id. (quoting Fernandes v. Attleboro Hous. Auth., 470 Mass. 117, 129 (2014)).
87 Id. at 202.
110 New England Law Review [Vol. 53

ANALYSIS

A. The Legislature Ought to Consider Amending the SDP Statute to

Provide that Jury Deadlock After Three SDP Mistrials Will
Result in Dismissal, Rather than Retrial

1. The Commonwealth Has a Compelling Interest in Protecting the

Public from G.F.

It is beyond question that the Commonwealth has a compelling interest

in protecting the public from G.F. 88 To explain, G.F. pleaded guilty to
sexual offenses on four separate occasions, including sexually molesting a
thirteen-year-old girl at knifepoint while he was on probation for a previous
sexual offense.89 G.F. also repeatedly raped his girlfriend’s six-year-old
daughter while she was bound and gagged. 90 As if this wasn’t bad enough,
the child reported that, on one occasion, G.F. forced her and her four-year-
old sister to perform fellatio upon him. 91 Furthermore, G.F. was evaluated
by a qualified examiner who concluded that both G.F.’s mental
abnormality and personality disorder make it highly likely that he would
recidivate sexually if he were to be released.92 In short, the heinous nature
of G.F.’s underlying sex offenses, one of which occurred while he was on
probation for a prior sex offense, cannot be more apparent, inasmuch as
they were committed in defiance of the laws of our Commonwealth, and of
the basic principles of human decency. 93 Therefore, the Commonwealth has
a compelling interest in keeping G.F. behind bars “[g]iven the possibility of
a threat to public safety.”94
G.F.’s case is not all that uncommon. 95 However, this area of law is
underdeveloped in that the Legislature did not limit the number of times
the Commonwealth could seek an SDP finding or restrict the circumstances
under which a retrial could take place, 96 which, in turn, leaves open the

88 See Commonwealth v. Burgess, 450 Mass. 366, 376 (2008).

89 G.F., 479 Mass. at 182 (emphasis added).
90 Id.

91 Id.

92 Id. at 183 (emphasis added).

93 See, e.g., Jeff D’Alessio, Judge: ‘Most Egregious Violation of Human Decency’, THE NEWS-

ENTERPRISE (Nov. 15, 2017),

http://www.thenewsenterprise.com/news/crime_and_courts/judge-most-egregious-violation-
of-human-decency/article_4db62d62-3389-51d7-8d11-ab2e0c2c13f4.html.
94 G.F., 479 Mass. at 192.; accord Commonwealth v. Purdy, 408 Mass. 681, 686–87 (1990).
95 See, e.g., Commonwealth v. Flood, 32 Mass. L. Rptr. 640, 1–8 (Mass. Super. Ct. 2015).
96 G.F., 479 Mass. at 190.
2019] MA Sexually Dangerous Persons Statute: A Critique 111

possibility for unlimited SDP retrials due to jury deadlock.97

In G.F., the SJC summarily rejected the notion that due process
prohibits a retrial after three mistrials by recognizing that “[c]ourts in other
jurisdictions have held that two or even three criminal retrials may be held
without violating due process, so long as the prosecution acts in good
faith.”98 For the reasons discussed below, however, the Legislature should
limit the number of times the Commonwealth can seek an SDP finding to
three because the legal justification for confinement is diminished after
three consecutive SDP mistrials.

2. Three Strikes and You’re Out

Where, as in G.F.’s case, an SDP trial has thrice concluded without a

finding of sexual dangerousness, 99 the Commonwealth’s SDP petition
should be dismissed because the legal justification for confinement is
severely diminished after successive SDP mistrials.100 “[C]onfinement
without legal justification is never innocuous,”101 and the legal justification
for confinement weakens after an SDP trial is concluded without a finding
of sexual dangerousness.102 In G.F.’s case, he was forced to endure three
successive SDP mistrials.103 The legal justification for confinement
weakened after each SDP trial concluded without a finding of sexual
dangerousness.104 Although jury disagreement does not necessarily
indicate a failure of proof,105 our judges, legislators, and our community at
large ought to be shouting “enough is enough” after three SDP mistrials

97 See id. at 190–91.

98 Id. at 192 (citing United States v. Hall, 551 F.3d 257, 273 (4th Cir. 2009) (finding that due
process did not prohibit retrial after three mistrials)); see United States v. Quijada, 588 F.2d
1253, 1255 (9th Cir. 1978) (finding that due process permitted third trial after two mistrials);
State v. Cordova, 128 N.M. 390, 393–94 (N.M. Ct. App. 1999) (finding no per se violation of
due process in third trial after two mistrials); People v. Sierb, 456 Mich. 519, 521, 525 (1998)
(finding that due process did not preclude third trial after two juries were unable to reach
verdict); see also State v. Huffman, 222 Ariz. 416, 419–23 (Ariz. Ct. App. 2009) (ruling that that
trial court did not abuse its discretion in denying defendant’s motion to dismiss because
evidence was sufficient to support a finding that third trial after second mistrial due to jury
deadlock would not violate due process or double jeopardy rights in prosecution for sexual
conduct with and aggravated assault of a minor under the age of fifteen).
99 G.F., 479 Mass. at 181.
100 See Commonwealth v. Pariseau, 466 Mass. 805, 813 (2014).
101 Commonwealth v. Kennedy, 435 Mass. 527, 530 (2001).

102 See Pariseau, 466 Mass. at 813.

103 G.F., 479 Mass. at 185–87.

104 See Pariseau, 466 Mass. at 813.

105 In re Sheridan, 422 Mass. 776, 780 (1996).

112 New England Law Review [Vol. 53

due to jury deadlock.106

“Now those who commit crimes should be punished. [But the
Commonwealth] should be told, ‘When you [fail to secure an SDP finding
for a third time], you[r] [SDP petition] will be [dismissed], and [dismissed]
for good; three strikes and you are out.’”107 Here, G.F. paid his debt to
society after serving fifteen to twenty years in prison for rape,108 and he
would have been released but for the Commonwealth’s SDP petition.109
The Commonwealth has been unable to secure a unanimous jury verdict
finding G.F. to be sexually dangerous, 110 and, although the SJC concluded
that an individual who is the subject of an SDP petition must be afforded
the opportunity to seek supervised release after an SDP mistrial due to jury
deadlock,111 forcing G.F. to undergo four successive SDP trials due to jury
deadlock is an “onerous burden” for someone who has paid his debt to
society.112
Therefore, the Legislature ought to consider amending the SDP statute
to provide that jury deadlock after three SDP mistrials will result in
dismissal, rather than retrial.113 This proposed change finds support in New
York’s version of the SDP statute, N.Y. Mental Hygiene Law § 10.07, which
requires dismissal of an SDP petition if the jury is twice unable to render
unanimous verdict.114 Alternatively, the Legislature ought to consider
amending the SDP statute to provide for an asymmetrical jury
instruction,115 which, as discussed below, would limit the number of times
the Commonwealth can seek an SDP finding.116

106 See Marianna Brown Bettman, What’s on Their Minds: How Many Times Can A Criminal
Defendant Be Re-Tried? State of Ohio v. Christopher L. Anderson, LEGALLY SPEAKING OHIO (June 7,
2016), http://www.legallyspeakingohio.com/2016/06/whats-on-their-minds-how-many-
times-can-a-criminal-defendant-be-re-tried-state-of-ohio-v-christopher-l-anderson/.
107 William J. Clinton, 42nd Pres. of the U.S., Address Before a Joint Session of the

Congress on the State of the Union (Jan. 25, 1994), (transcript at https://perma.cc/6R9J-H2L8).
108 See Commonwealth v. G.F., 479 Mass. 180, 182 (2018).
109 See id. at 182–83.
110 Id. at 192.

111 Id. at 190.

112 Purvis v. California, 234 F. Supp. 147, 151 (N.D. Cal. 1964).

113 See N.Y. MENTAL HYGIENE LAW § 10.07(e) (McKinney 2011).

114 Id.

115 See, e.g., MASS. GEN. LAWS ANN. ch. 123A, § 9 (West 2010); see also FLA. STAT. ANN. §

394.917(1) (West 2011) (requiring a unanimous jury verdict to maintain a finding of sexually
dangerousness and permits a retrial only if the majority of jurors would find the respondent
sexually dangerous).
116 See William S. Neilson & Harold Winter, The Elimination of Hung Juries: Retrials and

Nonunanimous Verdicts, 25 INT’L REV. L. & ECON. 1, 17 (2005).

2019] MA Sexually Dangerous Persons Statute: A Critique 113

B. The Legislature Should Consider Amending the SDP Statute to

Provide That a Unanimous Verdict is Required to Find an
Individual Sexually Dangerous, But Only Ten Votes Are Needed
to Find That He is Not

1. An Overview of Oregon’s Non-Unanimous Jury Verdict Rule

Although the SJC appropriately applied the law in reversing the trial
judge’s ruling regarding the number of jurors needed to render a verdict of
not sexually dangerous at G.F’s fourth retrial,117 the Legislature ought to
consider amending the SDP statute to provide for an asymmetrical jury
verdict whereby a unanimous verdict is required to find an individual
sexually dangerous, but only ten votes are needed to find that he is not. 118
In concluding that the SDP statute cannot be read to permit a less than
unanimous jury verdict at G.F.’s fourth retrial, the SJC stated that it is
“unaware of any scenario in which an asymmetrical requirement has been
allowed or imposed.”119 Well, in 1972, the U.S. Supreme Court ruled that
nothing in the Constitution bars states from allowing some convictions by
non-unanimous verdicts.120 Oregon is the only state in the country that
permits convictions for felonies other than murder on a 10-2 or 11-1 vote of
the jury.121
In fact, the Oregon Court of Appeals recently upheld the state’s
unique, non-unanimous jury law.122 The case stemmed from the 2017
conviction of Olan Jermaine Williams (“Williams”), an African American
man, who was accused of performing nonconsensual oral sex on a man
who had passed out from drinking at a party in 2014. 123 Initially, the jury
voted 9-3 to convict Williams of sodomy, with the jury’s lone African-
American joining two others in voting to acquit.124 During the four hours of
deliberations that followed, all three stood by their opinions.125 But after it
became clear that deliberations could extend into the next day, one holdout

117 See supra Part II(B) (outlining the SJC’s holding regarding an asymmetrical jury verdict).
118 See, e.g., MASS. GEN. LAWS ANN. ch. 123A, § 9 (West 2019); see also FLA. STAT. ANN. §
394.917(1) (West 2019).
119 Commonwealth v. G.F., 479 Mass. 180, 202–03 (2018).
120 Conrad Wilson, Oregon Court of Appeals Ruling Upholds State’s Nonunanimous Juries, OPB
(Apr. 10, 2019, 8:28 AM), https://perma.cc/V6KP-QQTK.
121 See id.

122 Id.

123 Id.; Conrad Wilson, Even When Juries Can’t Agree, Convictions Are Still Possible in Oregon,

OPB (Dec. 12, 2016, 7:30 PM), https://perma.cc/F6WD-85J5.

124 Lorelei Laird, Oregon May Finally Join 49 Other States That Require Unanimous Jury

Decisions in Criminal Cases, ABA J., (May 1, 2019, 2:30 AM CDT), https://perma.cc/38CN-RCCL.
125 Id.
114 New England Law Review [Vol. 53

changed her vote, saying she did not want to come back.126 That put the
number of guilty votes at 10, which was enough to convict Williams of
felony sodomy, condemning him to a mandatory minimum eight years in
prison.127
The Oregon Legislature is currently working on a bill that would ask
voters to reconsider non-unanimous juries in a ballot measure.128 However,
a Louisiana case pending before the U.S. Supreme Court regarding the
constitutionality of non-unanimous jury verdicts is expected to rule months
before Oregonians would vote on any ballot measure passed by their
Legislature.129 If the U.S. Supreme Court finds non-unanimous juries
unconstitutional, “‘[i]t will directly affect all cases going forward by
requiring unanimous jury decisions for convictions in all felony cases, thus
bringing Oregon in line with all the other states and the federal system.’”130
Having said that, the SDP statute is civil in nature, and, as discussed below,
the benefits of implementing an asymmetrical jury verdict rule under the
SDP regime outweigh the risk of harm to the public.

2. Pros and Cons of Adopting a Non-Unanimous Jury Verdict Rule

In Massachusetts, an individual who petitions for release under Mass.

Gen. Laws ch. 123A, § 9 (i.e., the statutory section governing petitions for
examination and discharge under the SDP regime), unlike a person tried
under Mass. Gen. Laws ch. 123A, § 14 (i.e., the statutory section governing
the procedural standards to determine sexual dangerousness under the
SDP regime), may be released if ten out of twelve jurors determine that he
is not sexually dangerous.131 The Legislature deliberately chose to require a
less than unanimous jury verdict in Mass. Gen. Laws ch. 123A, § 9, and not
in Mass. Gen. Laws ch. 123A, § 14 because the petitioner will have had
access to at least one year of sex offender treatment,132 but perhaps it is time
for our Legislature to adopt a non-unanimous scheme that governs the
procedural standards to determine sexual dangerousness under the SDP
regime.133
The benefits of amending Mass. Gen. Laws ch. 123A, § 14 to provide

126 Id.
127 Andrew Selsky, A Push Grows for Oregon to Drop Nonunanimous Jury Verdicts, AP NEWS
(May 8, 2018), https://perma.cc/N2V7-SJKP.
128 Wilson, supra note 120.
129 Selsky, supra note 127.
130 Selsky, supra note 127.

131 See Commonwealth v. G.F., 479 Mass. 180, 201–02 (2018).

132 See id. at 202.

133 See Michael H. Glasser, Letting the Supermajority Rule: Nonunanimous Jury Verdicts in

Criminal Trials, 24 FLA. ST. U. L. REV. 659, 676 (1997) (citation omitted).
2019] MA Sexually Dangerous Persons Statute: A Critique 115

for an asymmetrical jury verdict include increased judicial economy: The

SDP trial system would function more efficiently, saving many people
time, expense, and the inconvenience of another SDP trial.134 To illustrate,
Bill Cosby’s sexual assault retrial cost Montgomery County taxpayers just
over $219,000.135 The conviction came about eleven months after Bill
Cosby’s first trial resulted in jury deadlock.136 Bill Cosby’s case is
unquestionably unique given his celebrity status and the #MeToo
movement,137 but it demonstrates that hung juries—thrice occurring in
G.F.’s case—are costly, and non-unanimous rules could lead to a reduction
in that cost.138
Moreover, implementing a non-unanimous scheme would negate the
impact of an eccentric or irrational holdout juror who prevents a jury from
reaching unanimity.139 In G.F., for example, one juror expressed his view
that by refusing to be available for interviews with qualified examiners,
G.F. could “virtually guarantee” a mistrial.140 Never mind the fact that
G.F.’s decision not to speak with a qualified examiner prior to his third trial
could have been a legitimate and reasonable strategy for trial,141 it would
appear that, in doing so, G.F. “virtually guarantee[d]” a mistrial because at
least one juror determined that additional interviews with a qualified
examiner were necessary to make an informed decision about whether or
not G.F. is sexually dangerous.142 It is unclear how many hold-outs there
were in G.F.’s case and whether or not he would have been released (i.e.,
found not sexually dangerous) with an asymmetrical jury,143 but “‘[i]f there

134 See Neilson & Winter, supra note 116, at 2 (stating that non-unanimous verdicts lead to a

reduction in trial costs because fewer retrials would be needed).

135 CBS Broadcasting Inc., Bill Cosby’s Sex Assault Retrial Cost Montgomery County Taxpayers

Over $219,000, CBS PHILLY (June 28, 2018, 5:32 PM), https://perma.cc/MAB7-W4A5.
136 Chris Francescani & Linsey Davis, Bill Cosby Found Guilty on All Charges, ABC NEWS

(Apr. 26, 2018, 5:41 PM EDT), https://perma.cc/84A3-LQQ5.

137
See Ashley Cullins, Bill Cosby’s Sentence: Experts Weigh Implications of the #MeToo Era,
THE HOLLYWOOD REPORTER (Sep. 27, 2018, 10:19 AM PDT), https://perma.cc/M6FQ-Q32S.
138 Neilson & Winter, supra note 116, at 12.
139 See Glasser, supra note 133, at 676; Neilson & Winter, supra note 116, at 2 (suggesting
that moving from unanimous verdicts to a 9-3 rule, for example, would prevent a minority of
jurors from blocking a verdict).
140 Commonwealth v. G.F., 479 Mass. 180, 187 (2018).
141 See id. at 188 (noting that, prior to the fourth trial, “G.F. filed a ‘Memorandum in
Support of Right to Refuse Additional Interviews of Qualified Examiners’”); see also id. at 184
(noting that prior to the first trial, “G.F. explained that he needed time to ‘counter[ ] the [S]tate
[qualified examiner] reports’ and to ensure that his experts had sufficient time to interview
him”).
142 See id. at 187.
143 See id. at 185–88.
116 New England Law Review [Vol. 53

[was] one or two [holdouts] on a jury . . . it[] basically show[s] that the
[Commonwealth] didn’t do its job to prove the case.’”144 “‘Personally, if I’m
the defendant . . . I want the [Commonwealth] to truly prove [its] case.’”145
“‘[T]hat’s how our system works, and that’s how it should work.’”146 The
criminal justice system should not tolerate a conviction in a sex-related case
against a defendant because one holdout changed her vote to guilty on
grounds that she had to take care of her children and did not want to
return the next day.147 Nor, as in G.F.’s case, should we tolerate a fourth
SDP trial due to jury deadlock in the previous three. 148
Critics argue that “non-unanimous juries raise the chances of wrongful
convictions.”149 There is some evidence to support that belief,150 but an
asymmetrical jury verdict in the SDP regime would not allow for wrongful
convictions because it would require a unanimous verdict to find that an
individual is sexually dangerous. Moreover, the second part of the
proposed rule, i.e., requiring only ten votes to find that an individual is not
sexually dangerous, would limit the number of times the Commonwealth
can seek an SDP finding and prevent the possibility of unlimited SDP
retrials due to jury deadlock.151
Sensationalized media reports would have one think that sexually
dangerous persons are being released from confinement by the
thousands.152 Overall, the prison system released 180 sex offenders from
civil commitments between 2009 and 2017.153 Moreover, the Boston Release
Network, an organization that promotes public safety by helping returning
citizens reintegrate into the community, notes that of the fifty-nine
individuals using their services, none have committed or even been
arrested for a new sex offense. 154 In fact, sex offenders have one of the
lowest recidivism rates of all offenders, which suggests that the benefits of
implementing a non-unanimous jury verdict rule into the SDP regime

144 Laird, supra note 124.

145 Laird, supra note 124.
146 Laird, supra note 124.

147 Selsky, supra note 127.

148 See N.Y. MENTAL HYG. LAW § 10.07(e) (McKinney 2007); see also FLA. STAT. ANN. §

394.917(1) (West 2019).

149 Laird, supra note 124.

150 Laird, supra note 124.

151 See Neilson & Winter, supra note 116, at 17.

152 Anthony Benedetti & Laurie Guidry, Changing Sex Offender Law Needs to be Evidence-

Based, BOS. GLOBE (July 9, 2018, 4:09 PM), https://perma.cc/Z5SM-NVNM.

153 Laura Crimaldi, Mass. Juries, Psychologists Regularly Clear Sex Offenders Deemed No Longer

Dangerous, Record Show, BOS. GLOBE (Sep. 22, 2018, 6:35 PM), https://perma.cc/Y39Z-NWSY.
154 Benedetti & Guidry, supra note 152.
2019] MA Sexually Dangerous Persons Statute: A Critique 117

outweigh the risk of harm to the public.155 Therefore, perhaps it is time for
the Legislature to amend the SDP statute to provide for an asymmetrical
jury verdict.

CONCLUSION

G.F.’s case is not all that uncommon. Clearly, the Commonwealth has a
compelling interest in protecting the public from G.F. However, the
Legislature’s failure to limit the number of times the Commonwealth could
seek an SDP finding or restrict the circumstances under which a retrial
could take place, which, in turn, leaves open the possibility for unlimited
SDP retrials due to jury deadlock, demonstrates the need to amend the SDP
statute.
Although the SJC concluded that an individual who is the subject of an
SDP petition must be afforded the opportunity to seek supervised release
after an SDP mistrial due to jury deadlock, the Legislature ought to
consider amending the SDP statute to provide that jury deadlock after
three SDP mistrials will result in dismissal, rather than retrial because at
some point enough is enough. Alternatively, the Legislature ought to
consider amending the SDP statute to provide for an asymmetrical jury
verdict whereby a unanimous verdict is required to find an individual
sexually dangerous, but only ten votes are needed to find that he is not,
which, in effect, would limit the number of times the Commonwealth can
seek an SDP finding and prevent the possibility of unlimited SDP retrials
due to jury deadlock.

155 Benedetti & Guidry, supra note 152.