Senate would strip judges of power to say who is sexually dangerous

BOSTON — The state Senate has approved a measure to take the power away from judges to determine whether a sex offender poses too much of a risk to be let loose and make it the exclusive purview of juries.

The measure passed as an amendment to the Senate version of the state budget. It still needs approval from a joint legislative committee that will hammer out differences between the House and Senate budgets, and must get Gov. Deval Patrick’s signature.

If passed into law, imprisoned sex offenders nearing parole could no longer choose a bench trial – in which a judge acts as jury – when prosecutors petition to have them civilly committed as "sexually dangerous."

Advocates for the change argue some judges are too lenient and point to cases such as that of David C. Flavell, a repeat offender who was arrested in Boston in October after attempting to rape a woman in a bathroom at Massachusetts General Hospital.

Prosecutors from both the Bristol and Norfolk County district attorneys office tried to keep Flavell behind bars by having him declared a sexually dangerous person. But Bristol Superior Court Judge Richard T. Moses let Flavell go.

Flavell was convicted in April of trying to rape the woman in the Boston hospital. He had been released from jail not long before that attack after serving six months for accosting a woman in the bathroom at the Borders bookstore in Braintree in 2008.

In that case, Flavell sneaked into the bathroom and stuck his head under a stall to look at a 36-year-old woman from Holbrook. The woman ran out of the bathroom screaming, and Flavell ran out of the store. Police said he was carrying a backpack with duct tape and a ski mask when they arrested him.

Before the attack in Braintree, Moses released Flavell from a prison treatment center for sex offenders after ruling that he was not sexually dangerous.

State Sen. Michael Morrissey, D-Quincy, who is running for Norfolk County District Attorney, is a vocal supporter of the change in the law.

He said Judge Moses "reached a similar conclusion" in the case of Corey Saunders, a Level III sex offender who got out of prison then lured a 6-year-old boy away from his mother at a public library in New Bedford and raped him.

Each year, district attorneys are notified of about 1,600 sex offenders nearing parole. District attorneys petition to have about 100 sexual offenders a year civilly committed – anywhere from one day to life – on grounds that they are sexually dangerous, according to a 2010 white paper by the Massachusetts District Attorneys’ Association.

The association said jury trials "ensure that the community is empowered with a voice in determining whether a defendant poses a significant risk of reoffending."

"25% of all sex offenders re-offend within 15 years"

.........Sarah Tofte

RAPSHEET

March 14, 1996:

David Flavell is spotted by a security guard urinating in a mop bucket at a Salem, N.H., Kmart, then masturbating on children’s clothing. Suspended sentence.

April 10, 1996:

At a Salem, N.H., Bradlees department store, Flavell is caught on camera masturbating into a shirt on display. Suspended sentence.

June 24, 1996:

Flavell masturbates in front of a New Hampshire supermarket.

July 9, 1996:

Flavell masturbates in front of another store in New Hampshire. Served two months for both offenses.

Dec. 13, 1996:

Methuen police arrest Flavell in the afternoon for masturbating in the ladies clothing section of a Rich’s department store, 5 yards from where a woman was shopping.

Dec. 13, 1996:

Hours later, back on the street, Flavell beats up and attempts to rape a woman he chats up at a Methuen American Legion Post.

Nov. 6, 1997:

He is arraigned in Lawrence on accusations of assault with intent to rape, assault and battery with a dangerous weapon, and two other charges. The following April, he pleads guilty and is sentenced to 2 1/2 years in the house of correction. He is released Jan. 18, 2000.

Dec. 8, 2000:

Flavell is bagged again for masturbating at a Gap in Taunton.

April 13, 2001:

Flavell exposes himself outside a Brooks Pharmacy in Fairhaven.

Sept. 4, 2001:

Flavell flashes a woman and her four children in the parking lot of a Canton Gap. In November, he gets a nine-month sentence for Taunton, Fairhaven and Canton offenses.

October-November 2002:

Flavell is hospitalized for psychiatric evaluation after he admits to calling unidentified ‘hotlines‘ from Franklin and Taunton, threatening to harm children.

March 19, 2003:

Police in Salem, N.H., charge Flavell with disorderly conduct and making false public alarms after he tells them he followed a mother and her child into a store.

April 28, 2003:

For violating probation on Salem offense, Flavell is committed to the Bristol House of Correction for 2 years.

Sept. 15, 2004:

Bristol District Attorney Paul Walsh Jr. petitions to have Flavell civilly committed as a sexually dangerous person. Flavell is held over pending a ruling.

Feb. 14, 2006:

Judge Richard T. Moses denies the petition after five medical experts testify Flavell is not sexually dangerous. Two other experts, however, disagree. Prosecutors ask Moses to reconsider his decision, but he refuses.

December 2006:

Braintree police charge Flavell with making obscene phone calls to the Connecticut Child Protection Services hotline, but the case is later dismissed.

Aug. 31, 2007:

Flavell is arraigned in Boston Municipal Court for allegedly making ‘lewd and disturbing’ calls to the National Center for Missing and Exploited Children from pay phones at Massachusetts General Hospital and the Esplanade. The charges were dimissed in January when a critical witness backed out, but the case has been reopened and Flavell is scheduled to be arraigned in BMC again Wednesday.

Jan. 29, 2008:

Carrying a backpack police suspect contained a ski mask, gloves and duct tape, Flavell allegedly follows a woman into the ladies room at the Braintree Borders after blocking the door with a bookcase and tries to crawl under her stall. He flees when she screams.

Feb. 20, 2008:

Captured with the backpack Feb. 19 in a Brockton doughnut shop, Flavell, who claims to be homeless, pleads not guilty in Quincy District Court to accosting a person of the opposite sex and disorderly conduct. He remains held on $10,000 cash bail.

Oct. 22, 2009:

Boston police charge Flavell with assault with intent to rape a woman in a Massachusetts General Hospital restroom.