Supreme Judicial Court (April 9, 2009)

A petitioner is entitled to be discharged without trial in a §9 case if neither qualified examiner (QE) forms the opinion that the petitioner remain sexually dangerous. In addition, the same reasoning applies to initial commitment proceedings under §12, and the Commonwealth cannot proceed to trial when both QE's opine that the person in question is not sexually dangerous.

The petitioner served a ten year sentence for sex offenses he had committed, and thereafter he was committed as an SDP. He subsequently filed a petition seeking discharge under c. 123A, §9. As required by law, the petitioner was examined by two QEs and each concluded that he was no longer sexually dangerous. However, after meeting with the petitioner and members of his treatment team, the members of the CAB unanimously reached the opposite conclusion and found him to be sexually dangerous. At trial, both QEs testified on behalf of the petitioner, opining that he was no longer sexually dangerous. Through the oral testimony of one of the CAB's members, the Commonwealth introduced the CAB report concluding that the petitioner remained sexually dangerous. The judge allowed the petitioner's motion for a directed verdict, and the Appeals Court affirmed. The SJC granted further appellate review and affirmed.

The SJC held that the statutory scheme of c. 123A implicitly creates a central role of the QEs in the process of determining whether someone is sexually dangerous. This is demonstrated by the fact that they are integral to nearly every step of the civil commitment process. Because of the central role the QEs play, the Legislature mandated them to possess certain minimum qualifications. "[T]he role of the qualified examiners within [the] scheme persuades us that the Legislature intended them to serve in a capacity similar to that of a gatekeeper, deciding whether a person warrants commitment as a [SDP]. Implicit in this view is the conclusion that, if both [QEs] determine that a person is not sexually dangerous, the Commonwealth cannot meet its burden of proof."