DOE 304309 v. SEX OFFENDER REGISTRY BOARD (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, John Doe, sought judicial review pursuant to G. L. c. 30A, § 14, of his classification by the Sex Offender Registry Board (board) as a level three (high risk) sex offender. See G. L. c. 6, § 178K (2) (c). A Superior Court judge denied Doe's motion for judgment on the pleadings, allowed the board's cross motion, and affirmed the level three classification. Doe's sole claim on appeal is that the board erred in denying his motion for funds to hire an expert. We affirm.

Background. Doe was convicted of four counts of incest for repeatedly raping his seventeen year old niece (victim 2). Doe committed these offenses while he was on probation for violating an abuse prevention order protecting his former girlfriend (victim 1). While the order was in effect, Doe forced his way into victim 1's home, assaulted her, repeatedly raped her, and forced her to write a letter affirming her consent. While the charges relating to victim 2 were pending, Doe committed an indecent assault and battery on a third victim, a six year old girl (victim 3).

Doe is an alcoholic and was under the influence of alcohol when he assaulted victims 1, 2, and 3. Doe claimed that his alcohol abuse was the reason for his criminal history, stating, “I never once got into trouble when I was sober.” Doe has also been diagnosed with major depressive disorder, post-traumatic stress disorder, and hepatitis C.²

Before his classification hearing, Doe filed a motion for funds to retain an expert “in offending ․ by those with major depressive disorder, post-traumatic stress disorder and alcohol use disorder.” The motion was supported by an affidavit from counsel, medical records reflecting Doe's diagnoses, and an article suggesting that many psychiatric disorders have genetic roots.³ The board denied the motion, reasoning that Doe had consistently stated that his sex offenses resulted from alcohol abuse and that factor was taken into consideration in the board's regulations.

Discussion. “The board has discretion to grant funds to indigent offenders for an expert witness or report.” Doe, Sex Offender Registry Bd. No. 339940 v. Sex Offender Registry Bd., 488 Mass. 15, 28 (2021) (Doe No. 339940). See Doe, Sex Offender Registry Bd. No. 89230 v. Sex Offender Registry Bd., 452 Mass. 764, 770 (2008) (Doe No. 89230). “The board's discretionary decision to grant or deny an offender's motion for expert funds is ‘based on the facts presented in an individual case.’ ” Doe No. 339940, supra, quoting Doe No. 89230, supra at 775. A motion for expert funds must

“1. identify a condition or circumstance special to the sex offender and explain how that condition is connected to his or her risk of reoffense or level of dangerousness; 2. identify the particular type of Expert Witness who would provide testimony to assist the Hearing Examiner in his or her understanding and analysis; and 3. include supporting documentation or affidavits verifying the specific condition or circumstance that the offender suffers from.”

803 Code Mass. Regs. § 1.16(4)(a) (2016). A motion seeking expert funds for “a general opinion on the sex offender's risk to reoffend and degree of dangerousness” is insufficient and should be denied. 803 Code Mass. Regs. § 1.16(4)(b) (2016).

Doe acknowledges that his motion did not explain how his conditions are connected to his risk of reoffense or level of dangerousness, but contends that “it is not possible to meet this requirement until an expert evaluates Doe.” According to Doe, denial of his motion for expert funds denied him due process. Doe's premise is flawed. No expert opinion is required in order to explain, for purposes of a motion for expert funds, how an offender's particular condition is connected to his risk of reoffense or level of dangerousness. Neither the board's regulation nor its decision in this case imposes any such requirement. Without purporting to announce any generally applicable standard, we observe that, in numerous cases, a reasonably specific and plausible threshold lay explanation has sufficed. See, e.g., Doe, Sex Offender Registry Bd. No. 234076 v. Sex Offender Registry Bd., 484 Mass. 666, 670-671 (2020) (Doe No. 234076); Doe No. 89230, 452 Mass. at 775-776. Compare Doe, Sex Offender Registry Bd. No. 205614 v. Sex Offender Registry Bd., 466 Mass. 594, 599, 610 (2013) (research articles submitted with request for expert funds). Doe has not shown how requiring such an explanation violates due process. Simply put, Doe did not meet his burden to “identify and articulate the reason or reasons, connected to a condition or circumstance special to him, that he needs to retain a particular type of expert.” Doe No. 89230, supra at 775.

To the extent that Doe's motion sought expert assistance in the evaluation of sex offenders with alcohol use disorder, we note that the board “has discretion to deny expert funds to indigent sex offenders who offer expert opinion on factors that the board's regulations already require the hearing examiner to consider.” Doe No. 234076, 484 Mass. at 670. Here Doe's alcoholism and its relationship to his offending behavior was an issue addressed in the board's statutory and regulatory factors. See G. L. c. 6, § 178K (1) (g); 803 Code Mass. Regs. § 1.33(9)(a) (2016).

For these reasons, we discern no abuse of discretion in the denial of the request for expert funds.

Judgment affirmed.

FOOTNOTES

2.   While incarcerated, Doe “suffered a serious head injury” which resulted in “subsequent memory loss for years.”

3.   The motion stated that Doe's sister and niece suffered from mental illness.