Right to counsel

In Sarzen v. Gaughan, 489 F.2d 1076 (1st Cir. 1973), the federal First Circuit considered whether there is a right to counsel for proceedings relating to a determination that a person is sexually dangerous.  Although the case focused on Massachusetts, its analysis and conclusions were not based on the particular law in Massachusetts, and as such would be binding on other states within the First Circuit.  While Rhode Island appears to have no such commitment procedure at present, the analysis is included here for thoroughness.

The court first held that the right to counsel did not attach for the temporary 60-day commitment for “examination and diagnosis”, stating:

While counsel might be helpful, especially in the case of disturbed or badly educated inmates, we cannot say that counsel is constitutionally mandated for this purpose prior to the observational commitment of one serving sentence for a sex crime, provided there is a careful and conscientious effort to check out the historical data with the inmate and to see that it is accurate and complete.

Additionally, the court reasoned that early on, the psychiatrist’s role is to be “relatively open and professionally detached,” and that “Before the psychiatrists have rendered an adverse report, we are not persuaded that their role is so greatly at variance with the interests of the inmate as to require the state to assume the burden of appointing counsel for each person being examined or about to be examined.”  However, once the psychiatrist filed a report finding the person to be sexually dangerous, “the psychiatrists’ role has changed. They have, in effect, become prosecutors; their ‘benevolence’ has been ‘compromised’; the inmate needs independent assistance, including that of counsel.”  The court added that appointing counsel at the final commitment hearing was insufficient.  Notably, the court commented that

Although the full panoply of criminal due process is not necessarily applicable to c. 123A proceedings, see Gomes v. Gaughan, supra, 471 F.2d at 799, we follow the Supreme Court’s directive in In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), not to allow the “civil” label to deflect us from the fundamental interest at stake. See Heryford v. Parker, 396 F.2d 393, 396-97 (10th Cir. 1968).