Appeals Court Overturns Feeley Decision On Sex Offender

SALEM, MA -- The Massachusetts Appeals Court overturned a decision by Salem Superior Court Judge Timothy Feeley to grant a defendant's motion to dismiss a state petition to declare him a sexually dangerous person. Feeley dismissed a report from the only qualified examiner to rule that David Baxter was sexually dangerous, blocking prosecutors from moving forward with the designation. Baxter is currently being held at Bridgewater State Hospital.

Feeley has been under fire for a string of decisions this year that were seen as being too lenient, including a case in May when he ignored a prosecutor's request to impose a jail sentence for a convicted drug dealer.

Baxter has a lengthy criminal record, according to the Massachusetts Sex Offender Registry. In 2003, he was convicted on nine counts of indecent assault and battery on child under 14 years of age, two counts of indecent assault and battery on a person aged 14 or older and four counts of rape and abuse of a child, as well as two counts of dissemination of matter harmful to minors. In 1997, he was convicted on a charge of indecent assault and battery on child under 14 years of age, and in 1994 he was convicted on two counts of indecent assault and battery on child under 14 years of age.

Feeley granted Baxter's motion, which claimed the first examiner appointed by the state had a conflict of interest. The examiner's report was a necessary step in the March 2017 petition by prosecutors to commit Baxter as a sexually dangerous person. At the time, Baxter was being held at the Essex County House of Correction after violating his probation.

A judge agreed with the examiner's opinion that Baxter was likely to re-offend if released, prompting Baxter to file the motion that Feeley granted. Feeley ordered a new examiner be assigned to the case and made no findings of fact, writing that his ruling was "based on the appearance of an inappropriate and avoidable conflict."

The new examiner ruled that Baxter was not sexually dangerous, and Baxter moved to have the state's petition dismissed so he could be released. The state immediately appealed the dismissal, and the appeals court ruled that the appearance of a conflict of interest did not necessarily mean one existed.

"Because the defendant did not meet his burden to prove a disqualifying conflict of interest, [the original examiner's] report and opinion should not have been excluded," the appeals court ruled. "As this exclusion served as the sole basis for the allowance of the defendant's motion to dismiss the Commonwealth's petition, the motion judge's decision cannot stand. Accordingly, we vacate the judgment and order of discharge."

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Photo of David Baxter by Massachusetts Sex Offender Registry.

Dave Copeland can be reached at dave.copeland@patch.com or by calling 617-433-7851. Follow him on Twitter (@CopeWrites) and Facebook (/copewrites).