Boston Globe – October 26, 2009

Middlesex District Attorney Gerard T. Leone Jr. plans to urge lawmakers today to change the state law for civilly committing individuals as sexual dangerous persons, five days after a convicted sex offender freed from jail over prosecutors’ objections allegedly attacked a woman at Massachusetts General Hospital.

Leone, in a previously scheduled appearance before a legislative committee, intends to promote a bill he helped craft that would make it more likely that juries rather than judges would decide whether to indefinitely commit sex offenders to a treatment center. He says Middlesex judges are more lenient than juries in such cases, which involve keeping offenders locked up after they have completed their prison sentences.

Under current law, defendants fighting petitions to commit them to the state Treatment Center in Bridgewater can ask for their cases to be heard by judges instead of juries, and prosecutors have no recourse. Under the bill supported by Leone, prosecutors would have to agree to the requests before defendants could waive jury trials.

“When a convicted sex offender chooses a jury-waived trial, the community is shut out of the process, other than a prosecutor making the best argument possible to a judge,’’ said Leone, who will appear before the Legislature’s Joint Committee on the Judiciary.

But Michael F. Farrington, the Mattapoisett lawyer who recently persuaded a judge to not civilly commit the man who was arrested in Thursday’s attack at Mass. General, characterized Leone’s measure as cynical grandstanding.

He said most convicted sex offenders who overcome prosecutors’ efforts to have them civilly committed do not commit new sex crimes, regardless of whether it is a judge or jury that determined they were not sexually dangerous.

“The United States Congress and our state Legislature are all under the false impression that these fellows have a high rate of recidivism, and it’s just the opposite, but they don’t want to listen to that,’’ Farrington said.

Leone and state Senator Steven A. Baddour, a Democrat from Methuen, introduced the reform bill in February 2008 after Corey Saunders, a convicted sex offender, was arrested on charges of raping a 6-year-old boy at the New Bedford Free Public Library.

Saunders had been convicted of attempting to rape a 7-year-old boy in 1999. But a Superior Court judge, Richard T. Moses, ruled in a trial without a jury in December 2006 that Saunders did not meet the state’s high legal standard to be committed to the treatment center after he was released from prison.

Leone’s measure may gain more traction after last week’s attack on an unidentified 27-year-old female employee at Mass. General.

At 3 p.m., David Flavell, a 40-year-old homeless man who is designated a Level 3 sex offender because of a long history of exhibitionism and other sex offenses, allegedly grabbed a woman he followed into the women’s bathroom at the hospital. Boston police said he threw her to the floor, punched her in the face, repeatedly slammed her head against the floor, and ripped her pants before she managed to escape. Police arrested him moments later.

State prosecutors in 2006 and this year tried to persuade Norfolk and Bristol judges to commit Flavell to the treatment center. But two judges, one of them Moses, said they were not persuaded beyond a reasonable doubt that Flavell had a “mental abnormality’’ or “personality disorder’’ that made him likely to commit another sex offense if not confined.

In Middlesex, Leone said juries have civilly committed a far higher percentage of defendants than judges did over the past decade. Since 1999, 51 trials have been held in response to petitions by prosecutors. Of the 27 cases decided by a judge, 44 percent of the defendants were ruled sexually dangerous. Of the 24 cases decided by a jury, 75 percent were ruled sexually dangerous.

But John G. Swomley, a Boston lawyer, said he has defended about 15 convicted sex offenders in such hearings, and he almost always prefers juries to determine his clients’ fate. Contrary to conventional wisdom, he said, Swomley has found that juries are less apt to be swayed by fears of freed defendants committing new sex offenses than judges.

“The reality is that everybody [on juries] does actually believe that when you’ve done your time, you shouldn’t be put in jail prospectively for something you haven’t done,’’ he added. He said the disparity in Leone’s statistics might reflect the fact that many court-appointed lawyers in such cases are inexperienced, which can be a particular liability in jury trials.

Saltzman can be reached at jsaltzman@globe.com.