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SJC-12388

                     COMMONWEALTH   vs.   G.F.



        Suffolk.     November 9, 2017. - March 20, 2018.

   Present:   Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.


Sex Offender. Constitutional Law, Sex offender. Due Process of
     Law, Sex offender. Practice, Civil, Sex offender, Civil
     commitment, Verdict.



     Civil action commenced in the Superior Court Department on
December 24, 2010.

     A motion to modify the temporary order of confinement and
for an order of custody conditions, filed on October 17, 2016,
was heard by Douglas H. Wilkins, J., and questions of law were
reported by him to the Appeals Court.

     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 24, 2016.

     The case was heard by Gaziano, J., and the matter was
reported by him to the Appeals Court.

     After consolidation in the Appeals Court, the Supreme
Judicial Court on its own initiative transferred the case from
the Appeals Court.


     Joseph M. Kenneally (Michael F. Farrington also present)
for G.F.
                                                                    2


     John P. Zanini, Assistant District Attorney, for the
Commonwealth.


     GAZIANO, J.   This case concerns G. L. c. 123A, the statute

governing civil commitment of sexually dangerous persons (SDP).

Prior to civilly committing an individual under this statute,

the Commonwealth must obtain a unanimous jury verdict finding

that the individual is sexually dangerous.1   G. L. c. 123A,

§ 14 (d).   Subject to certain exceptions, the trial to determine

sexual dangerousness must be held within sixty days after the

Commonwealth files a petition for trial.   G. L. c. 123A,

§ 14 (a).   During this time, the individual is to be temporarily

confined.   See G. L. c. 123A, § 14 (e); Commonwealth v.

Pariseau, 466 Mass. 805, 808 (2014).

     In this case, the Commonwealth filed a petition seeking to

commit the petitioner as an SDP in December, 2010.   Following

years of delay and three mistrials, the petitioner remains

confined without a finding that he is sexually dangerous.      He

contends that substantive due process and the SDP statute

require dismissal of the Commonwealth's petition.    A judge of

the Superior Court concluded that continued confinement violated

the petitioner's substantive due process rights, ordered his




     1 Such a finding also may be obtained at a jury-waived
trial, if neither party requests a jury trial. G. L. c. 123A,
§ 14 (a).
                                                                    3


release, and then stayed that order and reported a number of

questions.

    We conclude that the SDP statute permits a fourth trial in

the circumstances of this case.    While due process would impose

a limit on the number of retrials that may take place under the

SDP statute, that limit has not been reached here.   The

petitioner's nearly seven-year confinement without a finding of

sexual dangerousness, however, does violate his substantive due

process rights as provided by the Fifth and Fourteenth

Amendments of the United States Constitution and the

Massachusetts Declaration of Rights.    Accordingly, he must be

afforded the opportunity to seek supervised release prior to his

fourth trial.

    1.   Background.    We summarize the uncontested facts from

the record, discussed in part in two different Superior Court

judges' decisions on the petitioner's motions for release from

confinement.    See Chin v. Merriot, 470 Mass. 527, 529 (2015).

    a.   Offenses.    The petitioner has pleaded guilty to sexual

offenses on four separate occasions.   In 1980, he pleaded guilty

in the California Superior Court to lewd and lascivious conduct

upon a child.   On multiple occasions, he had sexually molested a

friend's thirteen and eleven year old daughters.

    In 1982, while he was on probation for these offenses, the

petitioner sexually molested the thirteen year old daughter of a
                                                                    4


friend, at knife point, in the friend's apartment.     He pleaded

guilty in the California Superior Court to lewd and lascivious

conduct upon a child by force with the use of a deadly weapon.

    In 1992, the petitioner also agreed to sufficient facts in

the Massachusetts District Court to support convictions of,

among others, open and gross lewdness and assault with a

dangerous weapon.   In October, 1993, the petitioner pleaded

guilty in the Superior Court to charges of three counts of rape

of a child; three counts of kidnapping; two counts of assault

and battery; one count of mayhem, assault and battery by means

of a dangerous weapon, and one count of making threats.       The

petitioner repeatedly had raped his girl friend's six year old

daughter while she was bound and gagged.   According to the

child's statements, he threated to kill her mother if the child

said anything.   The child reported that, on one occasion, her

four year old sister entered the room, and the petitioner forced

both girls to perform fellatio upon him.   He also forced his

girl friend to do so until she had an asthma attack.    The

petitioner was sentenced to concurrent terms of from fifteen to

twenty years on each of the rape charges, and concurrent terms

of from five to ten years on each of the charges of kidnapping

and mayhem.

    b.   Proceedings prior to the three mistrials.     Shortly

before the petitioner's sentences were to end, the Commonwealth
                                                                        5


retained as a qualifying examiner Dr. Carol Feldman to evaluate

him.       In December, 2010, Feldman determined that the petitioner

suffers from pedophilia, a mental abnormality as defined in the

SDP statute, as well as antisocial personality disorder,

resulting in an inability to control his sexual impulses.

Feldman analyzed multiple risk factors, including the

petitioner's prior sexual offenses, his prior inability to abide

by the rules of his probation, and his termination from sex

offender treatment in 2007 after slapping another resident.       She

also utilized an actuarial tool that assesses the risk of

recidivism.      She concluded that "if [the petitioner] were

released at this time, both his Mental Abnormality and

Personality Disorder make it highly likely that he would

recidivate sexually," and opined that he met the criteria for

sexual dangerousness as defined by G. L. c. 123A, § 1.2

       In December, 2010, the Commonwealth filed a petition

pursuant to G. L. c. 123A, § 12 (b), alleging that the

petitioner is still sexually dangerous.       The Committee for

Public Counsel Services assigned the petitioner an attorney,

whom the petitioner asked to file a motion to dismiss the SDP



       "To obtain a commitment of a sexually dangerous person,
       2

the Commonwealth must prove beyond a reasonable doubt that the
defendant 'suffers from a mental abnormality or personality
disorder which makes [him] likely to engage in sexual offenses
if not confined to a secure facility.'" Commonwealth v. Nieves,
446 Mass. 583, 586-587 (2006), quoting G. L. c. 123A, § 1.
                                                                    6


petition as untimely.3   In January, 2011, the Commonwealth moved

to commit the petitioner to the Massachusetts Treatment Center

(treatment center) pending a determination of probable cause

pursuant to G. L. c. 123A, § 12 (e).     A Superior Court judge

allowed the unopposed motion.   That month, the petitioner asked

his attorney to withdraw as counsel because the attorney had not

filed a motion to dismiss the SDP petition as the petitioner had

requested and because, one month into their attorney-client

relationship, the two had yet to meet.    The attorney did not

withdraw at that time, and no formal filings were made

requesting his withdrawal.

     In February, 2011, the petitioner waived his right to a

hearing and stipulated that there was probable cause to believe

that he was sexually dangerous.   See G. L. c. 123A, § 12 (c).    A

Superior Court judge accordingly found probable cause that the

petitioner was sexually dangerous, and ordered him committed to

the treatment center for a sixty-day period of evaluation,

pursuant to G. L. c. 123A, § 13 (a).     While at the treatment

center, the petitioner was evaluated by two qualified examiners,

as required under G. L. c. 123A, § 13 (a).    In March, 2011, the




     3 The petitioner claimed that his sentence had been
completed before the Commonwealth submitted its petition because
he believed that a specific number of days should have been
credited to his sentence. This issue is not before us.
                                                                     7


qualified examiners filed written reports in the Superior Court,

concluding that the petitioner was sexually dangerous.

     On March 21, 2011, the Commonwealth filed a petition for

trial pursuant to G. L. c. 123A, § 14 (a).4   The trial was

scheduled for June, 2011.   In April, 2011, the petitioner

corresponded with his attorney about retaining experts to assess

him, in addition to the qualified examiners that the

Commonwealth would present at trial.   The attorney suggested two

experts; the petitioner agreed to one and not the other.      That

same month, the   petitioner told the attorney that he was not

ready to set a trial date, even if this meant waiving his "time

limits."   The petitioner explained that he needed time to

"counter[] the [S]tate [qualified examiner] reports" and to

ensure that his experts had sufficient time to interview him.

He then once again asked his attorney to withdraw, and this time

filed a motion requesting that the attorney be dismissed as

counsel.   The petitioner also filed a pro se motion to dismiss

the SDP petition as untimely.

     In June, 2011, a Superior Court judge allowed the

petitioner's motion to dismiss his counsel, canceled the trial


     4 A trial must begin within sixty days after the
Commonwealth files an SDP petition, unless it is continued for
good cause or in the interests of justice, as long as the person
named in the petition will not be prejudiced. See G. L.
c. 123A, § 14 (a); Commonwealth v. DeBella, 442 Mass. 683, 687
(2004).
                                                                      8


scheduled for that month, and set a status date in July, 2011.

Later that month, the Commonwealth moved to continue the status

date for another ten days, so that the assistant district

attorney could attend to a family matter.    The judge set a new

hearing date for early August.    At the August hearing, a new

attorney appeared for the petitioner.

    In May, 2012, after no further proceedings had taken place,

the assistant district attorney wrote to the petitioner's

counsel, proposing to "get this case back on track."    At the end

of July, without hearing from the petitioner's counsel, the

assistant district attorney moved for trial.    At an August,

2012, hearing, a Superior Court judge allowed the Commonwealth's

motion and the parties set a trial date for November, 2012.      At

a status hearing in September, the judge allowed a motion by the

Commonwealth to continue the trial because one of the qualified

examiners was scheduled to be on vacation during the time that

the trial was scheduled.   The trial was rescheduled for

December.   The Commonwealth opposed the petitioner's previously-

filed pro se motion to dismiss.    The Commonwealth also moved for

an order to update the qualified examiner reports, which the

court allowed.

    Later in September, the petitioner's counsel moved to

dismiss the petition, arguing that the Commonwealth had failed

to begin trial within sixty days of its petition, as required by
                                                                    9


G. L. c. 123A, § 14 (a).   The following month, finding

"sufficient circumstantial evidence" of compliance with G. L.

c. 123A, § 14 (a), the judge denied this motion.   By December,

the court received updated written reports from the qualified

examiners and the petitioner's experts.    In a motion and

accompanying affidavit filed that month, the petitioner

requested that the trial be postponed, because his attorney had

not received recordings of his interviews with the qualified

examiners.   The petitioner also waived his statutory rights to a

prompt trial.   The judge allowed this motion to continue for

"good cause," and set trial for the week of February 4, 2013,

the date that the petitioner had requested, in order to

accommodate his experts.

     In January, 2013, the petitioner again moved to reschedule

the trial, this time to February 25, 2013, "or a date agreeable

to the court," and again waived his rights to a prompt trial.

For reasons that are not apparent from the record, the judge

subsequently rescheduled the trial to April, 2013.5

     c.   The three mistrials.   The petitioner's first SDP trial

took place in April, 2013, more than two years after the




     5 Separately, in November, 2012, the petitioner filed a
petition for relief pursuant to G. L. c. 211, § 3, from a
Superior Court judge's October, 2012 order denying his motion to
dismiss. A single justice in the county court denied the
petition, and the full court affirmed the denial.
                                                                    10


Commonwealth filed the SDP petition in March of 2011.     The

petitioner was then fifty-five years old.

    After four days of trial, the jury deliberated for two

days, but were not able to reach a unanimous verdict.     The judge

declared a mistrial.   In June, the Commonwealth moved to update

the qualified examiner reports; the motion was allowed.     In

September, the parties moved jointly to reschedule a pretrial

status hearing to October.    When the petitioner's counsel had a

medical emergency, the hearing was moved again, to one week

later.   Following the start of medical complications, however,

the petitioner's counsel experienced "an unforeseen, unexpected

and unanticipated incapacity to engage in the on-going

preparation of [the petitioner's] opposition to [the SDP]

petition for three months."   A hearing scheduled for December,

2013, subsequently was canceled, and the petitioner requested

that a January, 2014, hearing be postponed.    Hearings scheduled

for February, 2014, and March, 2014, also were not held.     In

February, 2014, the two qualified examiners filed updated

reports with the court.

    In March, 2014, the petitioner moved unsuccessfully to

continue his trial -- scheduled to begin that month before a

different judge -- in a motion that again waived his statutory

right to a prompt trial.   The petitioner requested the

postponement after one of his experts stated that he would be
                                                                    11


unable to testify effectively before the judge who would oversee

the March trial due to "continuing confrontations" concerning

the expert's requests for payment.    That motion was denied the

same month.   The judge also denied motions for a directed

verdict, mistrial, and dismissal of the SDP petition.

    The petitioner's second trial took place over approximately

two weeks in March, 2014.    The petitioner filed another motion

for a directed verdict, which was denied.     At the end of the

trial, the judge declared a mistrial because the jury were once

again unable to reach a verdict.     In April, 2014, the judge held

a trial assignment conference.

    In May, the petitioner requested to continue the third

trial, which was scheduled for the end of that month, to

September, in order to provide him time to interview new

witnesses and to consult with an expert.     A different Superior

Court judge allowed the motion, but ordered the parties to

return in June for a hearing on a trial date.     In September, the

petitioner's counsel was hospitalized and underwent major

surgery.    A trial that had been scheduled for December was

canceled.

    In March, 2015, updated qualified examiner reports were

filed with the Superior Court, and the Commonwealth petitioned

for a trial within sixty days.     The trial was scheduled for

June.   The petitioner filed a motion to dismiss.    He argued that
                                                                  12


because G. L. c. 123A, § 14 (d), provides only that a unanimous

jury finding of sexual dangerousness requires commitment to the

treatment center, in the event that a jury failed to reach

unanimity, the Commonwealth's petition would have to be

dismissed and he would have to be released.6   In April, this

motion was denied, on the grounds that the jury's failure to

reach a unanimous verdict did not require either a directed

verdict or dismissal of the SDP petition.

     In May, the petitioner waived the   trial date that had been

scheduled for June, due to his attorney's medical complications

and resulting temporary inability to work on his case.     The

petitioner expressed his desire to have the same counsel

continue to represent him, and "waive[d] all of [his] procedural

rights for a trial of this action during the next four months."

The judge allowed this motion and ordered the parties to confer

with the session clerk to set a new trial date.   Also that

month, the Commonwealth moved to admit evidence that, prior to

the third trial, the petitioner had declined to speak with the

qualified examiners; the motion was allowed.




     6 "If after trial, the jury find[] unanimously and beyond a
reasonable doubt that the person named in the petition is a
sexually dangerous person, such person shall be committed to the
treatment center . . . for an indeterminate period of a minimum
of one day and a maximum of such person's natural life until
discharged pursuant to the provisions of [G. L. c. 123A, § 9]."
G. L. c. 123A, § 14 (d).
                                                                   13


     In August, 2015, the petitioner moved to continue his trial

to December because of his attorney's medical complications and

resulting incapacity.   The judge allowed the continuance, and

scheduled the trial for January, 2016; the parties thereafter

jointly requested that date be postponed.   In January, 2016, the

court received updated reports from the qualified examiners.

     The petitioner's third trial took place in January, 2016;

at trial he again filed a motion for a directed verdict.     The

two qualified examiners testified that the petitioner was likely

to reoffend, due in part to his failure to complete sex offender

treatment. The petitioner responded that core sex offender

treatment was unavailable to him during his pretrial

confinement, and therefore he last had participated in core

treatment during his prison sentence, in 2007.7   According to the

testimony at trial, the only sex offender treatment levels

available to the petitioner while he was being held in pretrial

confinement are ones that he had completed while serving his

criminal sentence.8


     7 The petitioner was terminated from core sex offender
treatment in 2007 for noncompliance with institution rules that
treatment professionals interpreted as a failure to learn and
apply the self-control taught in treatment.

     8 Full treatment, developed for individuals who are
committed to the treatment center after being found sexually
dangerous, begins with an assessment period that can take months
to complete. As a result, full treatment has been deemed
infeasible for individuals awaiting an SDP trial, whose
                                                                   14


    The third trial also ended in a mistrial when the jury were

unable to reach a unanimous verdict.    One juror sent the judge a

note about the petitioner's decision not to speak with a

qualified examiner prior to the third trial, expressing his view

that, by refusing to be available for interviews with qualified

examiners, the petitioner could "virtually guarantee" a

mistrial.   The petitioner had asked the judge to instruct the

jury that a unanimous verdict was required to find him sexually

dangerous, but that only ten votes were needed to find that he

was not (asymmetrical jury verdict).    The judge denied this

request.

    d.     Proceedings before fourth trial.   The Commonwealth

moved for a fourth trial, and the trial judge set a trial date

for May, 2016.   In January, 2016, the petitioner filed a motion

to modify the terms of his confinement; the Commonwealth opposed

the motion.   In February, concluding that due process required

that the petitioner be granted access to full sex offender

treatment during his pretrial confinement, the same judge denied

the motion in part and allowed it in part.    The judge ordered

the Commonwealth to file a report concerning whether to offer

the petitioner full sex offender treatment or, in the

alternative, to show cause why the petitioner should not be



commitment is intended to last for at most a few months.     See
G. L. c. 123A, §§ 13(a), 14(a).
                                                                   15


released on constitutional grounds or offered another

alternative to detention that the Commonwealth might suggest.

The judge also changed his view as to the asymmetrical jury

verdict, stating that he would instruct the jury that only ten

votes were required to find that the petitioner was not sexually

dangerous, if the petitioner so requested.   The Commonwealth

filed a notice of interlocutory appeal as to the decision

regarding the jury verdict.   In March, the Commonwealth learned

that the petitioner had been offered and declined sex offender

treatment.

    In May, 2016, the petitioner filed a motion for directed

verdict or dismissal of the petition.   The Commonwealth opposed

this motion, and the judge denied it.   Due to his counsel's

health, the petitioner subsequently moved to continue the May

trial.   The judge allowed the motion and assigned the earliest

possible trial date, which was in October, 2016.

    In June, 2016, both parties filed a number of motions with

regard to the admissible evidence at the forthcoming trial.     The

Commonwealth again sought to exclude evidence of the date of the

filing of its SDP petition, and again moved to admit evidence

that the petitioner had refused to speak with the qualified

examiners prior to the third trial.   The petitioner filed a

"Memorandum in Support of Right to Refuse Additional Interviews

of Qualified Examiners."   After a hearing, the petitioner filed
                                                                   16


before the single justice of the Appeals Court a petition for

leave to appeal from the May, 2016, denial of his motion to

dismiss the SDP petition; this petition was dismissed as

untimely.   Separately, in August, 2016, a single justice of the

Appeals Court denied without prejudice the Commonwealth's

petition for leave to appeal from the asymmetrical jury

instruction.

     A few days before the scheduled trial in October, 2016, a

single justice of the Appeals Court stayed the trial.     A

Superior Court judge then reported the case for appellate

determination pursuant to Mass. R. Civ. P. 64 (a), as amended,

423 Mass. 1403 (1996).9   Having concluded that continued

confinement would violate the petitioner's substantive due

process rights, the judge also ordered the petitioner released

with conditions pending trial.   The single justice stayed this

order pending a decision by the full court.

     The petitioner filed a petition for relief pursuant to

G. L. c. 211, § 3, in the county court.    In December, 2016, he

moved to consolidate the claims raised in that petition with the

case that had been reported to the Appeals Court.   A single

justice of this court ordered that the claims raised in the

petitioner's G. L. c. 211, § 3, petition   be transferred to the


     9 Among the reported questions, the judge included his
proposed instruction on asymmetrical jury verdicts.
                                                                  17


Appeals Court.   The Appeals Court subsequently consolidated the

petitioner's claims with the related reported questions.   We

transferred the matter to this court on our own motion.

    2.   Discussion.   We are asked to resolve the following

reported questions:

     "1. After three mistrials resulting from jury deadlock,
does this court have the statutory and constitutional authority
to hold a fourth trial on the Commonwealth's petition to commit
[the petitioner] as a sexually dangerous person under G. L.
c. 123A, § 12?

     "2. If so, may the Commonwealth continue to keep [the
petitioner] confined in strict security pending trial for more
than 5 3/4 years based solely upon a stipulation of probable
cause in January[,] 2011, consistent with statutory and
constitutional principles, including due process and equa1
protection?

     "3. In the absence of statutory authority, does this
[c]ourt have any power to conduct a hearing to determine whether
[the petitioner] is sexually dangerous solely for purposes of
pretrial detention and, if so, must such a determination be made
by a preponderance of evidence, clear and convincing evidence,
beyond a reasonable doubt or some other burden of proof?

     "4. If the [c]ourt may continue to hold trials on the
Commonwealth's petition in this case, what proportion of the
jury is required to return a verdict of 'not sexually dangerous'
under equal protection and due process principles?

     "5. Does the [c]ourt have any power to impose bail,
electronic monitoring, minimum security or other alterations in
the strict security required by G. L. c. 123A, § 14 (a)?"

We review these questions of law de novo.   See Commonwealth v.

Diggs, 475 Mass. 79, 81 (2016).

    We conclude that the SDP statute permits a fourth trial in

this case.   While due process would not permit an indefinite
                                                                  18


number of retrials, see Gomes v. Gaughan, 471 F.2d 794, 797 (1st

Cir. 1973), that limit has not been reached here, so the

petitioner may be retried.

     Although the SDP statute requires confinement until the end

of the SDP trial, the continued confinement in this case,

without a finding of sexual dangerousness beyond a reasonable

doubt, violates the petitioner's substantive due process rights.

As a result, we conclude that he must be afforded the

opportunity to seek supervised release, subject to conditions

that the judge determines are necessary in order to protect

public safety, pending his fourth SDP trial.   At a hearing to

determine whether the petitioner may be released pending

retrial, the Commonwealth must show by clear and convincing

evidence that no conditions reasonably could assure that public

safety would be protected if the petitioner were to be released.

     If a mistrial occurs at an SDP trial following the release

of the rescript in this case, any individual who is the subject

of an SDP petition must be afforded the opportunity to seek

supervised release according to these procedures.10

     Consistent with existing statutory and common law, at the

petitioner's fourth trial, a unanimous jury will be required in




     10This shall not apply where a mistrial is necessitated by
the misconduct of an individual who is the subject of an SDP
petition or his counsel at trial.
                                                                     19


order to make a finding either that the petitioner is sexually

dangerous, or is not sexually dangerous.

    a.   Whether a fourth trial may be conducted.     General Laws

c. 123A, § 14 (d), provides, "If after trial, the jury find[]

unanimously and beyond a reasonable doubt that the person named

in the petition is a sexually dangerous person, such person

shall be committed to the treatment center."   Unlike lawmakers

in other States, the Legislature did not limit the number of

times the Commonwealth could seek an SDP finding, or restrict

the circumstances under which a retrial could take place.

Compare id. with N.Y. Mental Hygiene Law § 10.07 (McKinney 2011)

(if jury were twice unable to render unanimous verdict, court

shall dismiss petition); Fla. Stat. Ann. § 394.917(1) (West

2011) (if jury are unable to reach unanimous verdict, judge must

declare mistrial and poll jury, and may conduct retrial only if

majority would find respondent sexually dangerous).    See Nemet

v. Boston Water & Sewer Comm'n, 56 Mass. App. Ct. 104, 113

(2002) (had Legislature intended different policy, "it is

reasonable to think that it would have worded the statute in

that manner, as other State legislatures have done").

    The SDP statute provides only that commitment is required

after a unanimous finding of sexual dangerousness; it does not

specify the proper course of action in circumstances where the

jury are unable to reach a verdict.   See G. L. c. 123A,
                                                                    20


§ 14 (d).   The petitioner argues that if the jury do not reach a

unanimous finding, the statutory language requires that the

petition be dismissed.     Jury deadlock, however, "has long been

considered the 'classic basis' for a proper mistrial,"

Commonwealth v. Phim, 462 Mass. 470, 473 (2012), quoting

Blueford v. Arkansas, 566 U.S. 599, 609 (2012), and permits

another trial.    Downum v. United States, 372 U.S. 734, 735-736

(1963).

    We assume that the Legislature does not depart from settled

law without clearly indicating its intent to do so.     See Greater

Boston Real Estate Bd. v. Department of Telecomm. & Energy, 438

Mass. 197, 202 (2002), quoting Ferullo's Case, 331 Mass. 635,

637 (1954).     While, in crafting the SDP commitment scheme, the

Legislature had the power to supersede the common law, see

McHoul, petitioner, 445 Mass. 143, 147 (2005), cert. denied, 547

U.S. 1114 (2006), it has not done so with regard to the

procedure following a mistrial.    Had the Legislature intended

that jury deadlock would result in dismissal, rather than

retrial, "the wording of the statute could have easily reflected

[this intent].    It does not."   Rowley v. Massachusetts Elec.

Co., 438 Mass. 798, 802 (2003).    As a result, we conclude that

the SDP statute does not require dismissal in the event that the

jury are unable to reach a verdict, and permits a fourth trial

in this case.
                                                                     21


    We conclude further that a fourth trial in the

circumstances of this case would not offend substantive due

process.   Substantive due process prohibits governmental conduct

that "shocks the conscience" or infringes on rights "implicit in

the concept of ordered liberty" (citation omitted). Commonwealth

v. Fay, 467 Mass. 574, 583, cert. denied, 135 S. Ct. 150 (2014).

The "requirements for minimum due process may vary depending on

the context."   Commonwealth v. Burgess, 450 Mass. 366, 372

(2008), and cases cited.    Although "the oppressive misuse of

multiple commitment proceedings would doubtless be a violation

of due process," Gomes, 471 F.2d at 797, a fourth trial here

would not rise to that level.

    We interpret the SDP civil commitment statute in light of

its dual goals:   protecting public safety while safeguarding

respondents' procedural rights.     See Commonwealth v. Knapp, 441

Mass. 157, 160 (2004).     "[I]t is beyond question that the

Legislature has a compelling interest in protecting the public

from sexually dangerous persons."     Burgess, 450 Mass. at 376.

We repeatedly have affirmed the statute's balancing of

respondents' rights and the goal of protecting public safety.

See, e.g., Pariseau, 466 Mass. at 811, 814 (2014); Commonwealth

v. Nieves, 446 Mass. 583, 594 (2006).     Both interests remain at

stake in this case.   While the Commonwealth has been unable to

secure a unanimous jury verdict finding the petitioner to be
                                                                   22


sexually dangerous, jury disagreement does not necessarily

indicate a failure of proof.   See Sheridan, petitioner, 422

Mass. 776, 780 (1996).   Given the possibility of a risk to

public safety, the Commonwealth's decision to retry the

petitioner is not an arbitrary use of government power, rising

to the level of a substantive due process violation.   See County

of Sacramento v. Lewis, 523 U.S. 833, 836 (1998) (arbitrary

conduct that shocks conscience violates substantive due

process).

    Courts in other jurisdictions have held that two or even

three criminal retrials may be held without violating due

process, so long as the prosecution acts in good faith.     See,

e.g., United States v. Hall, 551 F.3d 257, 273 (4th Cir. 2009)

(due process did not prohibit retrial after three mistrials);

United States v. Quijada, 588 F.2d 1253, 1255 (9th Cir. 1978)

(due process permitted third trial after two mistrials, absent

harassment by prosecutor); State v. Cordova, 128 N.M. 390, 394

(1999) (same).   See also United States vs. Jones, U.S. Ct. App.,

No. 96-1667, slip op. (2d Cir. July 25, 1997), cert. denied, 522

U.S. 976 (1997) (fourth trial not barred by due process after

two juries were unable to reach verdict and one conviction later

reversed); People v. Sierb, 456 Mich. 519, 521, 525 (1998) (due

process did not preclude third trial after two juries were

unable to reach verdict).   The petitioner has adduced no case,
                                                                   23


and we are aware of none, indicating that due process prohibits

a retrial after three mistrials.

    The purpose of the SDP statute is "to have cases brought to

trial rapidly, but not to deny justice in the interest of

expediency."     Commonwealth v. DeBella, 442 Mass. 683, 691

(2004).    At a certain point, the use of retrials undoubtedly

would violate due process.     Gomes, 471 F.2d at 797.   See United

States v. Castellanos, 478 F.2d 749, 753 n.4 (2d Cir. 1973)

(multiple retrials could violate due process if prosecution

sought "trial by attrition").    That point has not been reached

here, however.    Given the potential threat to public safety,

dismissal of the SDP petition in this case is not necessary in

order to balance the constitutional interests at play.      As a

result, we conclude that the petitioner may be retried.

    b.     Resulting delay.   Permitting a fourth trial will, of

course, occasion further delay.     Recognizing that the petitioner

already has experienced extraordinary delay -- years beyond what

the Legislature likely envisioned when it drafted the SDP

statute -- we nonetheless conclude that, in this case, the delay

resulting from the allowance of a fourth trial is not in

violation of statutory requirements.     Due process, however,

entitles the petitioner to seek supervised release pending

retrial.
                                                                    24


    General Laws c. 123A, § 14 (a), generally requires that an

SDP trial be held within sixty days after the Commonwealth files

its petition, but allows delays for good cause or in the

interest of justice, as long as the respondent is not

prejudiced.   See Gangi v. Commonwealth, 462 Mass. 158, 161

(2012).   Where an individual has acquiesced to the delay, the

Commonwealth may be able to show good cause for exceeding the

sixty-day statutory deadline.   See DeBella, 442 Mass. at 690.

See also Knapp, 441 Mass. at 166 n.12 (no statutory violation

although trial had not occurred over two years after probable

cause finding, where "the judge noted that trial has been

delayed '[m]ostly at the request of the [defendant]'").     While

the delay in this case cannot be attributed entirely to one

party's actions, it falls within the statutory exceptions to the

sixty-day requirement.

    The petitioner sought to postpone his trial and related

proceedings on several occasions.   In April, 2011, he told his

counsel that he did not want a trial to be held right away.    He

subsequently requested that his trial, then scheduled for

December, 2012, be postponed until February, 2013, and then

again to later that month.   In both postponement requests, the

petitioner waived his right to a prompt trial.   Following the

first mistrial, the petitioner's newly appointed lawyer

experienced medical complications, and several pretrial
                                                                   25


conferences and hearings subsequently were postponed.     After the

second mistrial, the petitioner repeatedly requested that his

third trial be continued due to his attorney's medical

complications, and the trial subsequently was postponed, from

May, 2014, until January, 2016.    While his attorney's medical

situation was undoubtedly out of the petitioner's hands, he

chose to continue working with his attorney, although he was

aware that a delay could occur as a result.    See DeBella, 442

Mass. at 690 (where respondent acquiesces in delay, statutory

exception to sixty-day deadline applies).

    The delay preceding the first trial included a period from

August, 2011, through May, 2012, when no action took place.       The

responsibility for this delay appears to rest with both parties.

While the Commonwealth bears the primary responsibility for

bringing the case to trial within the statutory time frame, "the

defendant shares the obligation to take active steps to move his

case through the system."   Commonwealth v. Lynch, 70 Mass. App.

Ct. 22, 27 (2007).   The petitioner and his attorney took no

action in response to a May, 2012, letter from the Commonwealth

proposing to "get this case back on track," until the

Commonwealth petitioned for trial in July of that year.

    Some portion of the delay in this case clearly resulted

from the Commonwealth's actions.   The Commonwealth, for example,

took two months to request updated qualified examiner reports
                                                                  26


after the first mistrial.    The Commonwealth also moved to

continue a status conference for eleven days in July, 2011,

because an assistant district attorney needed to tend to a

family matter, and moved to continue the first trial from

November, 2012, because a qualified examiner would be on

vacation that day.    Given the relatively short time frame of

both delays, and the fact that the Commonwealth requested these

postponements for reasons beyond its control, the allowance of

these continuances was reasonable and the brief delays were

merited.    See Knapp, 441 Mass. at 165-166.

    Additionally, the petitioner has experienced substantial

delay since his third trial took place in January, 2016.      To the

extent that this resulted from interlocutory appeals, it falls

within the good cause exception to the sixty-day requirement.

See Mass. R. Crim. P. 36 (b) (2) (A) (iv), 378 Mass. 909 (1979)

(excluding time elapsed during interlocutory appeals from time

within which criminal trial must commence).    See also Pariseau,

466 Mass. at 811 (criminal context may provide guidance in

construing SDP statute).    The petitioner also requested that the

fourth trial, scheduled for May, 2016, be continued due to his

counsel's health.

    Finally, the majority of the delay undoubtedly has resulted

because the petitioner's first three trials resulted in jury

deadlock.   While the petitioner is not responsible for this
                                                                    27


portion of the delay, for purposes of determining whether the

statutory deadline has been met, the clock must restart after a

mistrial.    See Mass. R. Crim. P. 36 (b) (1) (D), as amended, 422

Mass. 1503 (1996) (restarting speedy trial timeline after

retrial).    Additionally, these delays were merited:    the

Commonwealth was attempting to adjudicate the petitioner's

sexual dangerousness.

    In sum, although the delay in this case is extraordinary,

it occurred in large part due to circumstances that cannot be

attributed to the Commonwealth, and therefore falls within the

statutory exceptions to the sixty-day requirement.      See G. L.

c. 123A, § 14 (a).

    We note, however, that G. L. c. 123A, § 14 (a), prohibits

delay -- even for good cause or in the interest of justice --

where "the person named in the [SDP] petition will be

substantially prejudiced."    The petitioner's inability to

receive SDP treatment pending trial clearly constituted

prejudice.    See Pariseau, 466 Mass. at 811.   Following the third

trial, the Department of Correction ultimately offered

treatment, which the petitioner thereafter declined.

Considering the circumstances overall, there is no indication

that the petitioner would be prejudiced at a fourth trial, given

that he will receive the protections guaranteed by G. L.

c. 123A, § 14 (a).    "The robust, adversary character of the
                                                                    28


c. 123A procedure minimizes the risk of the erroneous commitment

of a person who is not sexually dangerous."    Nieves, 446 Mass.

at 591.   Given this, in some other circumstances involving

substantial delay, the court has concluded that a petitioner's

"case was not impaired by reason of the delay," and therefore

that dismissal was not required.    See Commonwealth v. Blake, 454

Mass. 267, 280 (2009) (Ireland, J., concurring).    Such is the

case here.    Accordingly, at this juncture, dismissal of the

Commonwealth's petition is not required.    Nonetheless, due

process demands the petitioner be afforded certain relief at

this point.

    Substantive due process prohibits government conduct that

"shocks the conscience," or interferes with "rights implicit in

the concept of ordered liberty" (citation omitted).    Fay, 467

Mass. at 583.   Where the government seeks to infringe on a

fundamental right, in order to comply with the requirements of

substantive due process, its action must be narrowly tailored to

further a compelling and legitimate government interest.

Commonwealth v. Aime, 414 Mass. 667, 673 (1993).    "The right of

an individual to be free from physical restraint is a

paradigmatic fundamental right."    Knapp, 441 Mass. at 164.

    The SDP statute requires that the subject of an SDP

petition be confined between a probable cause finding and the

resolution of the SDP trial.    See Pariseau, 466 Mass. at 809.
                                                                   29


Nonetheless, "[i]t is settled that a temporary civil commitment

to the treatment center, pending the outcome of a G. L. c. 123A

hearing, implicates a liberty interest, and therefore, due

process protections apply."    Blake, 454 Mass. at 276 (Ireland,

J., concurring), and cases cited.   As a result, "we . . . go

beyond the language of the statute to determine whether its

apparent intent is constrained by the requirements of due

process under the State or Federal Constitutions."    Sheridan,

petitioner, 422 Mass. at 778.    In this case, the petitioner's

extraordinarily long commitment absent a finding of sexual

dangerousness violates substantive due process.

    We consistently have concluded that confinement pending an

SDP trial is constitutional, only because that commitment is

temporary, and the SDP statute requires an expedited timeline

for trial.   See, e.g., Pariseau, 466 Mass. at 811, n.8; Blake,

454 Mass. at 268; id. at 278 (Ireland, J., concurring); Knapp,

441 Mass. at 168.   See also Gangi, 462 Mass. at 160 ("Among the

rights afforded an individual subject to confinement under G. L.

c. 123A are strict procedural deadlines governing commitment

proceedings").   "The balancing of interests contemplated by the

statutory framework may be upset when an SDP determination is

not made within the established time frames."     Pariseau, 466

Mass. at 813.    Civil commitment of people who potentially pose a

threat to public safety does not violate substantive due
                                                                  30


process, as long as that commitment takes place according to

proper procedures and evidentiary standards.    See Fay, 467 Mass.

at 584.   "It is uncontested that G. L. c. 123A outlines proper

procedures and evidentiary standards," Fay, supra at 585, but

the statute does not envision commitment for almost seven years,

based merely on a determination of probable cause.

    While substantive due process permits limited confinement

after a probable cause determination, it does not permit the

Commonwealth to hold an individual indefinitely while repeatedly

seeking a finding of sexual dangerousness.     See Andrews,

petitioner, 368 Mass. 468, 488 (1975) (Commonwealth cannot hold

person indefinitely without proving sexual dangerousness beyond

reasonable doubt).   "[C]onfinement without legal justification

is never innocuous," Commonwealth v. Kennedy, 435 Mass. 527, 530

(2001), and the legal justification for confinement weakens

after an SDP trial is concluded without a finding of sexual

dangerousness.   See Pariseau, 466 Mass. at 813.

    Due process demands that the petitioner have the

opportunity to seek supervised release.   See Pariseau, 466 Mass.

at 814.   In that case, we considered the appropriate remedy

after a judge presided over a jury-waived trial pursuant to

G. L. c. 123A, § 14, and then failed to meet the thirty-day

deadline for rendering a verdict.   Pariseau, 466 Mass. at 806.
                                                                    31


See Blake, 454 Mass. at 268.11    Because the petitioner was not

prejudiced by the delay, however, due process required neither

dismissal nor a new trial.     See Pariseau, supra at 812-813.    We

determined, however, that "justification for continued

confinement becomes considerably more attenuated after the

passage of this thirty-day period, or any agreed-upon extension,

absent countervailing extraordinary circumstances."    Id. at 814.

Accordingly, we concluded "that a defendant may seek review by

the trial judge if, thirty days after the end of a jury-waived

trial, the judge has not issued a decision on the Commonwealth's

petition pursuant to G. L. c. 123A, § 14.    A defendant may move

for a prompt decision and supervised release while the matter

remains under advisement and until a decision issues regarding

sexual dangerousness."   Id.

     The circumstances here require a similar conclusion.    In

the event of a mistrial, an individual who is the subject of an

SDP petition may seek release under the supervision of the

Department of Probation pending retrial.    "The availability of

release in such circumstances is justified by [such a person's]

liberty interest, which the Legislature recognized when it

     11The SDP statute does not provide a deadline by which a
judge must render a verdict in a jury-waived trial. See
generally G. L. c. 123A, § 14. Consistent with the expedited
pace of the SDP statute, in Commonwealth v. Blake, 454 Mass.
267, 268 (2009), we determined that, absent extraordinary
circumstances, the judge must render a decision within thirty
days after the end of a trial.
                                                                     32


established an expedited pace for proceedings under" the SDP

statute.   Id.   The opportunity ensures that the SDP regime is

sufficiently "narrowly tailored," Aime, 414 Mass. at 673, under

the strictures of substantive due process, yet meets the

government's compelling interest in protecting public safety.

See Burgess, 450 Mass. at 376.

    We recognize that, here, the petitioner will be afforded

the opportunity for supervised release only after his third

mistrial, notwithstanding our conclusion that this right exists

after a single mistrial.    Nonetheless, due process does not

require dismissal in this case.    As the Superior Court judge

noted, "The absence of full sex offender treatment plays a major

role in the substantive due process violation."     See Pariseau,

supra, at 811 (inability to access sex offender treatment

constitutes prejudice).    After the third mistrial, the

Commonwealth ultimately offered full sex offender treatment,

which the petitioner declined.     "Prejudice required for

dismissal focuses on the subsequent trial and the interference

with procedural rights therein."    Commonwealth v. Viverito, 422

Mass. 228, 231 (1996).     The delay in this case has not impaired

the petitioner's ability to mount a legal defense at his fourth

trial.   In the absence of prejudice, dismissal of the SDP

petition is not required, where other remedies can ensure
                                                                      33


compliance with the requirements of due process.      See Pariseau,

supra, at 812.

    c.      Supervised release hearing.   The criminal context can

provide useful guidance as to the appropriate procedures for a

supervised release hearing under the SDP framework.      See

Pariseau, 466 Mass. at 813-814.     We look particularly to G. L.

c. 276, § 58A, which permits pretrial detention of persons

accused of certain crimes on the grounds of dangerousness, in

order to protect public safety.     We have determined that this

scheme meets the requirements of substantive due process

provided by the Federal and State Constitutions.      Mendonza v.

Commonwealth, 423 Mass. 771, 778, 782 790 (1996).      The pretrial

detention statute applies only to individuals who have been

arrested for specific dangerous offenses, and requires the

government first to show probable cause.      Id. at 774.   The SDP

civil commitment regime, which applies only to individuals who

have committed specified sex offenses, and requires a probable

cause finding before initial commitment, is similar in these

respects.    See G. L. c. 123A, §§ 1, 13.

    Under the pretrial detention statute, before an individual

may be detained pending trial, a judge must find "by clear and

convincing evidence that no conditions of release will

reasonably assure the safety of any other person or the

community."    G. L. c. 276, § 58A (3).     The individual has the
                                                                   34


right to be represented by counsel, to testify, present and

cross-examine witnesses, and present information.    G. L. c. 276,

§ 58A (4).   In the event of a negative determination in the

District Court Department or the Boston Municipal Court

Department, the individual may seek review in the Superior Court

Department, and the petition for review must be heard within two

days.   G. L. c. 276, § 58A (7).   A bail decision by a Superior

Court judge is reviewable in the county court under G. L.

c. 211, § 3.    See Brangan v. Commonwealth, 477 Mass. 691, 705

(2017).   See United States v. Salerno, 481 U.S. 739, 751-752

(1987) (upholding Federal Bail Reform Act, which also requires

adversary hearing using clear and convincing evidence standard,

and provides for expedited appeal); Aime, 414 Mass. at 680,

quoting Foucha v. Louisiana, 504 U.S. 71, 83 (1992) (Federal

Bail Reform Act represents "one of those carefully limited

exceptions [to pretrial freedom] permitted by the due process

clause").    In the event that a judge determines that no

conditions of release reasonably will assure the safety of any

other person or the community, G. L. c.    123A, § 58A (3),

permits pretrial detention for 120 days, excluding any period of

delay as defined in Mass. R. Crim. P. 36 (b) (2).

    Applying similar principles to the SDP regime, following a

mistrial, a Superior Court judge must conduct an adversary

hearing to determine whether the subject of the petition can be
                                                                  35


released under conditions that reasonably would ensure public

safety.   See G. L. c. 276, § 58A (3).   At such a hearing, due

process requires the individual have all of the rights afforded

at a hearing under G. L. c. 276, § 58A (4), including the right

to be represented by counsel, to testify, to present and cross-

examine witnesses, and to present information.    If the judge

concludes that public safety concerns could be addressed by

imposition of conditions, the judge may order release, with

conditions, such as electronic monitoring, that he or she deems

necessary.   The judge may order the individual held in custody

only if the judge finds by clear and convincing evidence that no

conditions reasonably can ensure public safety.

     In determining whether any conditions reasonably could

ensure public safety, a judge should consider those factors set

forth in G. L. c. 276, § 58A (5), and those risk factors

provided in the regulations of the Sex Offender Registry Board

(SORB) that are relevant to the current mental state of a person

confined pending an SDP trial.12   See G. L. c. 6, § 178K (1)

(SORB risk factors used to assess risk of recidivism); 803 Code


     12Relevant risk factors contained in the Sex Offender
Registry Board's regulations include statutorily defined mental
abnormality; behavior while incarcerated or civilly committed;
recent threats made by the respondent; hostility towards women;
less than satisfactory participation in sex offender treatment;
age; physical condition; and participation in or completion of
sex offender treatment. See 803 Code Mass. Regs. §§ 1.33(1),
(12), (14), (15), (24), (30), (31), (32) (2016).
                                                                  36


Mass. Regs. § 1.33 (2016).   As it will at trial, the inquiry

should focus on the individual's current mental state.     See

Commonwealth v. McLeod, 437 Mass. 286, 291 (2002) ("the

requisite sexual offense conviction is not the basis for the

commitment [rather it is mental condition]" [emphasis in

original]).   Whereas, at a probable cause hearing, the court

lacks "the necessary and critical expert evidence of sexual

dangerousness that will be offered at a trial on a petition for

commitment under" the SDP statute, Commonwealth v. Reese,

438 Mass. 519, 523-524 (2003), following a mistrial, the court

may consult the qualified examiner reports and any other expert

testimony presented at trial.   See G. L. c. 123A, § 13 (a).     Cf.

Green, petitioner, 475 Mass. 624, 630 (2016).

     If a judge determines, after a hearing held pursuant to

these procedures, that no conditions of release reasonably will

assure the safety of any other person or the community, the

individual shall remain confined until retrial.13   If a petition

for release is denied, the court must order the Commonwealth to

offer SDP treatment, in order to avoid prejudice to the

individual in subsequent trials to determine sexual




     13Accordingly, the 120-day time limit for pretrial
confinement under G. L. c. 123A, § 58A (3), is inapplicable
here.
                                                                    37


dangerousness.14   See Pariseau, 466 Mass. at 811; G. L. c. 123A,

§ 14 (a).    If a second mistrial occurs, the individual must have

the opportunity to seek supervised release again, under the

procedures outlined.

     Although the SDP statute does not explicitly include

provisions regarding a supervised release hearing in these

circumstances, "[w]e recognize that the courts of the

Commonwealth have certain inherent and implied powers in

addition to those powers expressly enumerated in various

statutes."   Department of Mental Retardation v. Kendrew, 418

Mass. 50, 55 (1994).    See Pariseau, 466 Mass. at 814 (judge may

allow supervised release pending decision on sexual

dangerousness in jury-waived trial, notwithstanding absence of

express statutory authority); Commonwealth v. Parra, 445 Mass.

262, 266 n.5 (2005) ("this court ordered the release of the

defendant pending outcome of this appeal, on appropriate

conditions to be determined after a hearing before a judge in

the Superior Court").    Due process requires that an individual

held pursuant to the SDP statute have the opportunity to seek

supervised release following a mistrial, and must be released

unless a judge determines by clear and convincing evidence,




     14While an individual may decline sex offender treatment,
that decision would not render continued confinement a violation
of due process. See Nieves, 446 Mass. at 593.
                                                                  38


after an adversary hearing, that no conditions of release

reasonably can assure the safety of the community or any person.

     d.   Jury verdict.   We also are asked to determine what

proportion of the jury is required, at the petitioner's fourth

trial, to return a verdict of "not sexually dangerous."     General

Laws c. 123A, § 14(d), requires a unanimous jury verdict for a

finding of sexual dangerousness and subsequent commitment to the

treatment center.   General Laws c. 123A, § 9, provides that a

person who has been held at the treatment center for at least

one year may petition annually for release, and a verdict as to

whether the individual remains sexually dangerous may be reached

by a vote of ten out of twelve jurors.    See Sheridan,

petitioner, 422 Mass. at 780-781.   In this case, the Superior

Court judge determined that the SDP statute permits the

Commonwealth's petition to be dismissed if ten out of twelve

jurors conclude that the petitioner is not sexually dangerous,

because, had the jury found him sexually dangerous at his first

trial, by now he would have spent at least one year at the

treatment center, and could have filed a petition for release

under G. L. c. 123A, § 9.   Equality and fairness therefore

require, according to the judge, an asymmetrical jury verdict

instruction in this case.

     We are mindful that G. L. c. 123A, § 14 (d), explicitly

refers to the requirement of a unanimous jury verdict for a
                                                                    39


finding of sexual dangerousness, and is silent as to the

proportion necessary to reach the contrary conclusion.     Common

and statutory law consistently have provided, however, that the

same proportion of jurors is required in order to reach a

finding for either party in a civil case, and of guilt or

innocence in a criminal case.     See, e.g., 3 W. Blackstone,

Commentaries *375 (unanimous jury required for verdict in civil

trial); 4 W. Blackstone, Commentaries *354 (jury must deliver

criminal verdict in same form).     See also Blueford, 566 U.S. at

608, quoting Allen v. United States, 164 U.S. 492, 501 (1896)

(goal of jury system is to secure unanimity); Commonwealth v.

Zekirias, 443 Mass. 27, 33 (2004) (only unanimous jury verdict

is valid); Mass. R. Crim. P. 27 (a), 378 Mass. 897 (1979) (jury

verdict must be unanimous); Mass. R. Civ. P. 48, 450     Mass. 1404

(2008) (parties may stipulate that finding by stated majority of

jurors be accepted as verdict).     Indeed, we are unaware of any

scenario in which an asymmetrical requirement has been allowed

or imposed.

    An individual who petitions for release under G. L.

c. 123A, § 9, unlike a person tried under G. L. c. 123A, § 14,

has had access to at least one year of sex offender treatment.

"Commitment to the treatment center and the treatment an SDP

receives there is intended to provide an SDP with an opportunity

to overcome his 'general lack of power to control his sexual
                                                                    40


impulses' so that he can successfully reenter society."     Hill,

petitioner, 422 Mass. 147, 154, cert. denied, 519 U.S. 867

(1996).   Because the differential treatment of those confined

under G. L. c. 123A, § 14, and G. L. c. 123A, § 9, is

"rationally based" on this treatment opportunity, it raises no

equal protection concern.    See Vacco v. Quill, 521 U.S. 793, 801

(1997), quoting Personnel Admin'r of Mass. v. Feeney, 442 U.S.

256, 272 (1979).

    "We shall not override the legislative mandate without a

compelling constitutional basis."    Sheridan, petitioner, 422

Mass. at 780.    The Legislature chose to require a less than

unanimous jury verdict in G. L. c. 123A, § 9, and not in G. L.

c. 123A, § 14.   "The omission of particular language from a

statute is deemed deliberate where the Legislature included such

omitted language in related or similar statutes."    Fernandes v.

Attleboro Hous. Auth., 470 Mass. 117, 129 (2014).    See

Commonwealth v. Gagnon, 439 Mass. 826, 833 (2003) ("where the

legislature has carefully employed term in one place and

excluded it in another, it would not be implied where excluded"

[citation omitted]).

    We read statutory provisions in light of the common law and

existing statutes.     Liability Investigative Fund Effort v.

Medical Malpractice Joint Underwriting Ass'n of Mass., 409 Mass.

734, 742 (1991), S.C., 418 Mass. 436, cert. denied, 513 U.S.
                                                                    41


1058 (1994), quoting Pereira v. New England LNG Co., 364 Mass.

109, 115 (1973).    "Statutes are to be construed in the light of

the preexisting common and statutory law . . . .     It is not to

be lightly supposed that radical changes in the law were

intended where not plainly expressed."     Greater Boston Real

Estate Bd., 438 Mass. at 202, quoting Ferullo's Case, 331 Mass.

635, 637 (1954). In the absence of clear legislative intent, the

SDP statute cannot be read to permit an asymmetrical jury

verdict at the petitioner's fourth trial.

    3.     Conclusion.   We answer the reported questions as

follows:

     1. The petitioner may be retried for a fourth time on the
Commonwealth's petition to commit him as a sexually dangerous
person under G. L. c. 123A, § 12.

     2. Due process requires that the petitioner be afforded a
hearing and the opportunity for release with conditions pending
his fourth trial.

     3. The Superior Court judge has the authority, and the
obligation, to conduct a hearing to determine, by clear and
convincing evidence, whether there are conditions under which
the petitioner may be released pending his retrial. The
petitioner must be released unless the Superior Court judge
determines, by clear and convincing evidence, that no conditions
can reasonably ensure public safety.

     4. To reach a determination that an individual is "not
sexually dangerous" at a trial under G. L. c. 123A, § 14, a
unanimous jury verdict is required.

     5. After a mistrial at a G. L. c. 123A, § 14 (a) trial, a
Superior Court judge may impose bail, electronic monitoring, or
other conditions of release, as the judge deems appropriate,
consistent with public safety.
              42


So ordered.
