To meet the burden under Koe, client undergoes two separate forensic evaluations
By Kris Olson
BridgeTower Media Newswires
BOSTON, MA — Attorneys at several large firms had already turned down the client by the time he arrived on Geoffrey G. Nathan’s doorstep.
It wasn’t the client’s distant history of exposing himself to adult women (though that may not have helped), or his ability to pay legal fees (he had just received a “significant inheritance”), but the daunting legal challenge the client was facing, the Boston lawyer explains.
What the man was seeking was to have records of his criminal convictions from 1992, 1993, 1996 and 2001 sealed, a request that the plain language of the relevant statute, G.L.c. 276, §100A, makes clear that the commissioner of probation has no authority to grant.
Not only did Nathan take the case, he has now also secured the improbable result the client was seeking.
In her Dec. 2 decision, Superior Court Judge Janet L. Sanders ordered the commissioner of probation to seal the records because the retroactive application of G.L.c. 276, §100A, to Nathan’s client “would be in violation of due process and because circumstances individual to him support the sealing of his record.”
Nathan says he decided to take the case after meeting with the client. That’s when he was persuaded that the client’s motive was pure.
According to Nathan, “99.9 percent” of prospective clients who come to him looking for help in sealing their records want one thing: a gun permit, often as a precursor to committing more crimes.
But here, the client seemed genuinely interested in getting his life back and removing a stain that had hampered his efforts to improve his employment and housing circumstances, Nathan says.
Back in the day, Nathan’s client was “known to police,” as the saying goes. When someone in his community would report having been flashed, police “knew right where to go, and he would confess,” Nathan says.
For serial exhibitionists, open and gross lewdness will often “morph into something worse,” particularly once the offender serves prison time, according to Nathan.
“I got lucky; that was not his circumstance,” Nathan says.
After serving two jail sentences, receiving psychotherapy treatment, and simply getting older, which Nathan believes may be the most crucial factor, the now-54-year-old client was a changed man, Nathan became convinced.
But to get his record sealed, the lawyer knew he would have to clear the high bar the Supreme Judicial Court had established with its 2017 decision Koe v. Commissioner of Probation.
The Koe case also involved a reformed sex offender who, like Nathan’s client, was no longer required to register with the Sex Offender Registry Board but who had been thwarted in efforts to seal her record.
As Sanders explained, the SJC concluded that G.L.c. 276, §100A, imposed “new legal consequences to events completed before its enactment” and thus operated retroactively.
But if a petitioner could make a factual showing that the statute was unreasonable in its application to her, “then due process would prevent that retroactive application.”
The SJC established a three-factor test, which looks at “the nature of the public interest which motivated the legislature to enact the statute,” “the nature of the rights affected,” and “the extent or scope of the statutory effect or impact.”
To meet his burden under Koe, Nathan had his client undergo two separate forensic evaluations, one by a psychologist, the other by a licensed social worker.
The psychologist found that the client had a 3 percent risk of reoffending, “which represents the lowest degree of dangerousness to the public,” while the social worker concluded that the client posed no risk to the community whatsoever.
The commissioner of probation did not seek to rebut the client’s testimony about how his convictions had hampered his ability to obtain employment commensurate with abilities and education, and reduced his access to housing opportunities, instead arguing that his hands were tied by the wording of the statute, an unassailable position, Nathan says.
“The law is pretty clear that once someone has been classified as a Level 3 offender, the commissioner of probation is not authorized to seal their criminal record, period. Once a Level 3, always a Level 3,” Nathan says.
But the Koe decision leaves the door cracked for a judge to order records sealed, and now Nathan has guided his client through that opening, with the help of Sanders, whom he credited for her willingness to listen to his client’s arguments.
“Some judges are not just rubber stamps or cops in robes,” Nathan says.
Nathan had help along the way, notably from Boston attorney Dana A. Curhan, who specializes in civil and criminal appeals and who drafted some of the pleadings in the case.
But Curhan initially “wasn’t wild” about Nathan taking the case.
“I thought it would be difficult,” Curhan acknowledges, though he began to revise that view as he dug into the research and the path forward became clearer.
Still, there were several procedural hurdles Nathan had to overcome before he could get in front of Sanders. For example, he had to cajole a letter out of the commissioner of probation, which gave him a document on which to base the appeal.
Then there was the dispute with the Attorney General’s Office as to whether he had properly filed his client’s petition as an administrative appeal under G.L.c. 30A rather than a certiorari petition, which required pleadings to be refiled.
Nonetheless, Nathan did all he could to expedite the result and succeeded in bringing the case to resolution in just under a year. He says he couldn’t have done it without filing a motion to use special process servers rather than rely on the Suffolk County Sheriff's Office for service.
In addition, Nathan says that he used his entire Rolodex and a career’s worth of contacts to keep up the momentum behind his client’s case.
While there is not much interest in helping former sex offenders out there in the world, he hopes that this decision will “open up the floodgates” to other deserving individuals.
“It’s one of the best feelings as a practitioner to win against the worst odds,” Nathan says.
Conversely, had he disappointed the client after taking a significant fee, he feared drawing the client’s ire in the form of a Board of Bar Overseers’ complaint.
“Can you imagine what the BBO would have done to me?” he says with a laugh.
