Right to counsel

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Legislation, Sexually Dangerous Persons - Confinement

M.G.L. ch. 123A, § 12(d)(1) provides the right to counsel at the probable cause hearing for the civil commitment of prisoners or youths in the department of youth services, who are alleged to be sexually dangerous. The statute providing the right to counsel at the probable cause hearing does not expressly state that such counsel will be appointed for indigent persons, although one unpublished opinion (which has no precedential value in Massachusetts) referenced "appointment of counsel" under M.G.L. ch. 123A, § 12(d)  See Commonwealth v. Nicholls, 865 N.E.2d 1208 (Mass. Ct. App. May 7, 2007) (unpublished table opinion) (adding that delay in appointment does not provide remedy). As for the trial on the petition, the person named shall be entitled to the assistance of counsel and "shall be entitled to have counsel appointed if he is indigent" in accordance with chapter 211D, section 2. M.G.L. ch. 123A, § 14(b) (emphasis added).

 

Counsel will also be appointed for indigent persons under a related statute that permits the temporary commitment of prisoners or youths prior to the trial referenced above. M.G.L. ch. 123A, § 13(a), (c). The subsection adds that upon a showing of probable cause that the person named "in the petition is a sexually dangerous person, the court shall order the prisoner or youth committed to a treatment center for a period not exceeding 60 days for the purpose of examination and diagnosis."  During such examination, the individual is also entitled to retain a psychologist or psychiatrist, which shall be provided at public expense if the person is indigent. M.G.L. ch. 123A, §13 (d).

 

Once persons are committed to a treatment center pursuant to chapter 123A, they have the right to file a petition for examination and discharge once every twelve months. Upon the filing of the petition for examination and discharge, the person is entitled to a speedy hearing, and counsel shall be appointed upon the motion of the person or upon the court's own motion. M.G.L. ch. 123A, §9.


Additionally, the sex offender registry board, after classifying a sex offender under a level 3 classification (most dangerous/restrictive), shall transmit a report to the sentencing court explaining the basis of the recommendation to have the offender declared a sexually violent predator. The report is not subject to judicial review, but the court shall provide the offender the opportunity to be heard and inform the offender of the right to have counsel appointed if indigent. M.G.L. ch. 6, § 178K(2)(c).


Indigent sex offenders seeking judicial review of the sex offender registry board's final classification and registration requirements are entitled to have court appointed counsel represent them if the offender requests appointment from the court. M.G.L. ch. 6, § 178M. Indigent sex offenders are also entitled to have counsel appointed to represent them in evidentiary hearings before the sex offender registry board if the offender submits to the board documentary evidence pertaining to risk of recidivism, dangerousness to the public, and duty to register, and then petitions the board for a hearing to challenge the offender's classification and registration duty. M.G.L. ch. 6, § 178L(1)(a) (offenders in custody), (c) (offenders not in custody).

Appointment of Counsel: categorical Qualified: no