Sexually Dangerous Person - Probable Cause

Where the commonwealth has filed a petition seeking the civil commitment of a defendant as a sexually dangerous person, the petition must be denied because of the commonwealth's failure to establish probable cause to believe that the defendant remains sexually dangerous.

Inadequate Showing

"... [T]he Commonwealth must show probable cause to believe that (1) [defendant Earl W.] Toland was convicted of a sexual offense, (2) Toland suffers from a 'mental abnormality' or 'personality disorder' and (3) as a result of that mental abnormality or personality disorder Toland is likely to engage in sexual offenses if not confined to a secure facility. ...

"In this case, the Commonwealth has failed to satisfy its statutory burden to present enough evidence to establish probable cause to believe that Toland remains sexually dangerous. While the Commonwealth has satisfied this burden with respect to conviction of the requisite predicate offenses, the evidence that it has put forth (in the light most favorable to the Commonwealth) is insufficient for a reasonable jury to find, beyond a reasonable doubt, the essential facts that would establish sexual dangerousness: that Toland has a 'mental abnormality' or a 'personality disorder,' as those terms are defined in the statute, making him 'likely' to engage in sexual offenses if not confined.

"The Commonwealth's expert witness, Dr. [Cornelius F.] Kiley, never testified that he believed Toland to suffer from a mental abnormality or personality disorder. Dr. Kiley did not state that Toland was likely sexually dangerous or was probably sexually dangerous. The most Dr. Kiley was willing to state was that he believed Toland may be sexually dangerous, if there were extra-familial offenses and if any such offenses were sufficiently grave. It is unclear to the court whether the statutory definitions of a 'mental abnormality' or 'personality disorder' were used as a basis or as bases for Dr. Kiley's significantly qualified conclusion. Dr. Kiley's conclusion was, at best, uncertain, and highly tentative. To say that a given person 'may' be sexually dangerous, if certain facts are established, would not permit a reasonable jury to conclude beyond a reasonable doubt that the person is 'likely' to offend again if not confined.

"While the tentativeness of this conclusion may not itself defeat a finding of probable cause, when added to the Commonwealth's meager evidence of the alleged acts which form the crucial support for that conclusion, the court is forced to conclude that probable cause does not exist to believe Toland to be sexually dangerous. Dr. Kiley was 'reluctant' to reach even the tentative conclusion he did reach based only on the acts which led to Toland's underlying convictions. It is only when the alleged extra-familial offenses are added to the equation that he is 'inclined to recommend' that Toland 'may be' sexually dangerous. There are some documents in the record that reference extra-familial offenses. These references are, however, offhand. Because they are the only evidence of any such offenses, the degree to which the documents merely quote or paraphrase each other (or some other document not in the record) is unclear. Not only are these documents hearsay, they are hearsay on hearsay. Although perhaps admissible, they are entitled to little weight. Furthermore, they are extremely vague. They contain absolutely no details about the offenses, if there were any offenses. None of the information that Dr. Kiley says he needs in order to conclude that Toland may be sexually dangerous, the frequency, time frame, nature, and gravity of the alleged offenses, is presented.

"The links in the chain of reasoning the Commonwealth presented to the court are each too weak for the court to use to hold Toland. The court does not believe that the legislature intended that individuals be deprived of their liberty for up to 60 days for examination, and be faced with a jury trial that could lead to indefinite (and potential lifetime) commitment, on the basis of a tentative opinion premised on unreliable totem pole hearsay evidence of events so cursorily described.

"Even if the appropriate standard to apply at this stage is the lower probable cause standard, that needed to arrest, the Commonwealth has also failed to satisfy this standard. It is a critical part of the Commonwealth's case, through Dr. Kiley's testimony, that Toland committed extra-familial offenses and that those offenses were of sufficient gravity, frequency, and nature. On the evidence the Commonwealth has put forth, the court cannot, with reasonable caution, believe that Toland committed any extra-familial offenses and that the details of those offenses were of a dimension sufficient to satisfy the concerns Dr. Kiley expressed. The Commonwealth's evidence could not lead a person of reasonable caution to believe that Toland remains sexually dangerous.

"The court is mindful of the need, expressed by the legislature, to protect the public from sexually violent predators. ... The court is also mindful of the statutory precautions the legislature put in place, to guard against casting too wide a net. The legislature determined that not every person convicted of a sex offense was, for that reason alone, a sexually dangerous person, and it placed the burden on the Commonwealth to prove elements in addition to conviction, at trial, beyond a reasonable doubt. The legislature also determined that a probable cause hearing would further legislative goals, by screening out those petitions the Commonwealth was unable to support, thus saving valuable public resources for use in other cases. The Commonwealth, for all the reasons discussed above, has failed to sustain its burden at this probable cause stage."

Commonwealth v. Toland (Lawyers Weekly No.12-119-00) (25 pages) (Brassard, J.) (Plymouth Superior Court) (Civil Action No. 00-0331-B).

© 2000 Lawyers Weekly Inc., All Rights Reserved.

Back to Sex Offender Court Cases and Decisions