The Lowell Sun, August 13, 2010

BOSTON — At Jose Pagan’s “sexually dangerous person” trial two years ago, the jury was told of the 56-year-old Lowell man’s 30-year criminal record, which included three instances of molesting young girls.  The jury’s verdict: Pagan was a sexually dangerous person.

Under the “SDP” statute, Pagan, who had completed his prison sentence for his latest crime, was sent to Bridgewater State Hospital under a civil commitment to be kept behind bars until he is deemed no longer dangerous — possibly a lifetime sentence.   But Pagan may have been a free man in 2008 if he had opted for a jury-waived or bench trial before a judge without a jury.

Since 2007, when Middlesex District Attorney Gerry Leone took office, there have been a dozen “SDP” trials in Middlesex County. Of the seven SDP jury trials, all seven offenders were found to be dangerous. In the remaining five jury-waived trials, judges found only two to be dangerous, and three sex offenders were released into the community.
Under the old SDP law, the sex offender had the sole power to decide whether to be tried before a judge or a jury. That power has now been wrenched away from the sex offender and placed in prosecutors’ hands.

This week an amended SDP law — championed by Leone, state Sen. Steven Baddour, D-Methuen, state Rep. Charley Murphy, D-Burlington, and Jane Doe Inc. — went into effect, giving prosecutors the right to demand that a case be heard before a jury.   “This is a priority area for me, focusing on unique offenders, because they are the worst predators who prey on the most vulnerable,” Leone said. “This is a common-sense bill that empowers members of the community with a greater voice in determining whether convicted sex offenders should be allowed back into their neighborhoods.”

Since the SDP statute was enacted in Middlesex County, there have been 47 trials to determine whether a person is sexually dangerous. In the majority of those 47 cases, the defendant chose to bypass a jury. In 25 of those cases heard by a judge, 60 percent of the defendants were ruled sexually dangerous, while 68 percent of the defendants in the other 22 cases heard by a jury were deemed sexually dangerous.   “Juries take a more common-sense view,” Leone said.

Baddour said in a statement, “This is, above all else, a child-protection issue. I believe it is jurors, not judges, who should determine whether these sex offenders can return to their communities.”

Chelmsford resident Laurie Myers, of the victim advocacy group Community Voices, said, “This was not only a win for prosecutors, it’s a win for our communities. The SDP law is a much-needed safety net for offenders who in many cases serve inadequate prison sentences in the first place.”

The SDP statute is a process established in 1999 by the state Legislature in which a district attorney can move to have a convicted sex offender ruled a sexually dangerous person and committed to a state facility at the end of the sentence.   The statute sets a high standard for an offender to be declared dangerous, including that the defendant be determined to be “likely to reoffend” (Level 3 sex offender) and be a “menace to the health and safety of others.”

Less than 5 percent of the sex offenders statewide make it to SDP trials, Leone said.   “We don’t do this for every sex offender,” Leone said. “These are the worst of the worst.”
If a district attorney’s office petitions the court to have the defendant declared sexually dangerous, the defendant is entitled to a trial process that includes evaluations of the defendant by at least three psychologists.

Then, if a person is found to be sexually dangerous and committed, that person can seek a reconsideration hearing each year to determine if there has been some change that warrants a new trial.

Massachusetts has seen its share of tragedies at the hands of repeat sex offenders, Myers said.   “It only makes sense for a prosecutor be allowed to present evidence of dangerousness to a jury of 12 citizens, rather than relying on the opinion of one judge. District Attorney Gerry Leone should be commended for taking the lead on this.”