-: SJC-13274, in the matter of an impounded case.
-: Attorney Green, looks like you're already.
You're in position.
-: Thank you, good morning.
May it please the court,
Ashley Green on behalf of John Doe 6729.
As the court is aware,
this is Mr. Doe's appeal of a level three
subclassification, deeming him high risk sex offender
for an offense which occurred 15 years ago.
However, it did follow two other offenses.
For the fast 15 years, Mr. Doe has not re-offended.
Mr. Doe has proven-
-: But has Mr. Doe been for the last 15 years.
-: Mr. Doe was incarcerated for the majority of that time.
-: Thanks.
-: He appeared to be very...
He changed the trajectory of his life
during that incarcerated period.
And that was included in the hearing examiner's decision
while incarcerated, Mr. Doe obtained a degree
from Boston University.
He had glowing reports from various professors
that worked with him while he was incarcerated.
-: MS Green, can I get to what I think
might be the heart of the issue?
And you'll tell me if I'm wrong.
-: Please.
-: The compulsion part of it does,
am I right that the there's no requirement
that it be based on psychological evidence?
-: Currently as Factor II is under a state of erosion,
as we've seen through various cases,
compulsion seems to be the area
that needs the most attention.
There is nothing written in these statute
or in the regulations that requires
there be a psychological compulsion.
-: And that's true for all of these regulations, correct?
The need not be psychological expert testimony about any.
-: Well, I submit that the compulsion element
is a different character in and of itself
because high risk factor to carry so much weight.
-: Okay, but let's broaden out first
as far as whether we need psychological evidence,
but there is not obviously, in this case,
do we have a general requirement of expert psychological
testimony for any of these factors?
-: No, we do not.
-: Okay.
And then with respect to compulsion
and you're obviously gonna tell me why not,
is it just based upon an inference
that if someone was caught once before had served time
or however that has played out in this case,
in other cases that it's not a reasonable inference,
that they're under some type of compulsion
to sexually offend.
-: That would be our position that it-
-: And so please tell me why not.
-: That just because somebody offended was caught
and re-offended does not equal compulsion.
-: And we'll take off the table just pure repetitives.
-: That I think has been decided
that just repetitive does not equal Factor II,
but in this case, and as-
-: So can I ask you a question?
I'm Sorry-
-: Let's go back to you. -: Just finish that.
-: I was just wanted to yeah.
-: The irresistible impulse to perform and act.
That's what we're looking at, an irresistible impact.
Somebody that cannot control themselves.
That is what compulsion is.
That is the only category under which compulsion
should be applied
because it takes this broad spectrum of offenders.
And it takes out those offenders
that are seriously putting public safety at risk
because they can't control themselves.
And that is why Factor II exists by the legislature
put it in there because it takes out the top.
-: Okay, not your job.
-: Yes.
-: But how is that proven?
-: That is proven by a psychological evaluation
by an expert period.
-: You want us to add that essentially to that.
-: Exactly. -: Okay.
-: Exactly.
In order to qualify for Factor II to be applied,
there has to be a psychological compulsion
proven by expert testimony.
-: Where is the legal authority for that proposition?
-: The legal authority for that proposition
would be that applying it any other way
is an abusive statutory authority by the board.
They are not internally applying it-
-: That's conclusory.
Can you show me any support for that?
-: There's nothing that's-
-: Like a tautology.
Like it has to be proven by expert testimony
because it has to be proven by expert testimony.
Where do you come to that conclusion-
-: I would submit that support for it in order to support
or protect the due process rights of my client.
They have a right to an individualized and fair hearing.
And by saying that they don't have the right to an expert,
that's saying that they are compulsive,
then allowing the hearing examiner to apply that factor.
They are not getting their due process rights
to an individualized hearing.
-: Can I stop you there though,
but what in the due process clause of the federal
or the state equivalent requires expert testimony
for a factual conclusion?
-: I would submit again that it's the due process,
the Liberty rights,
the Liberty and privacy interests of my clients
to have those hearings that are individualized,
looking at the exact facts and circumstance
of each individual case.
And so there would be expert testimony necessary
to apply compulsiveness to any case,
but especially my client's case.
-: Is there any other place
where we require expert testimony in order for compliance
with the due process clause to be met?
-: I do not practice SDP proceedings,
but I do know that SDP proceedings
require qualified examiners to come in
and evaluate and give their opinion
whether somebody is SDP or not.
-: But maybe given what you preface your comments with
that you don't practice that this is a unfair question,
but this is the question before the court.
In the SDP proceedings,
isn't the qualified examiner provision,
a legislative requirement,
as opposed to a requirement to comply with due process,
which I think is the argument you're making.
-: It's my understanding
that it is a legislative requirement.
-: Okay, thank you.
-: Yes.
-: Counsel, could I just get one point of clarification?
You keep making reference to your client.
Are you making a facial challenge
or as an applied challenge?
-: This would be an as applied challenge to Factor II it's,
I do understand that the appeals court
has rebuffed a constitutional challenge to Factor II
in the last few years.
But in this case, as applied to my client,
the compulsion element has not been proven.
-: Well counsel, this is what I'm curious about.
If it's not proven,
and then let's assume hypothetically
that element isn't there, it's intentional.
So if it's an intentional violation
and not characterized as compulsive takes him out of SDP,
but arguably doesn't it then expose
your client to prosecution should he re-offend
under some kind of habitual offender statute?
-: I'm sorry, I'm not quite following your question.
-: Well, if you take that compulsion element out and say,
oh, he doesn't have compulsion, right?
Well then he intended it.
He intended the repetitive behavior.
I'm not sure that's so much better because now he's out,
he's intend, we've got him cleared.
He's not compulsive, do any of the crimes,
couldn't you argue, he is a habitual offender
the next time he does it.
And he ends up with a life sentence.
-: Then there are other factors that would address
repetitive behavior.
-: Like what?
-: Number of victims, diversity-
-: So you don't need compulsion.
-: No.
-: Oh, for sexually dangerous analysis,
you don't need it then.
-: For a sexually dangerous person.
-: Yeah.
-: Again, I don't practice in the area
of sexually dangerous person.
So I would submit that the idea of psychological compulsion
or an impulse that cannot be controlled
would fall under an SDP diagnosis,
but that's not what we're dealing with in this case.
-: Is not it?
-: This case is simply the board given an extreme power
to classify my client as a level one, a level two,
or level three.
And he is actively disseminated every single day of his life
because they're telling the public
that he is the highest risk offender
finding that he has a compulsion.
-: Because convicted of sequential assaults
and decent assaults and rape of children that he was near.
So are you arguing that we only should be looking at this
as an exercise of the board's discretion
or an improper exercise of the board's power
and not be concerned with what compulsion means,
not be concerned with it,
whether it's a factor or not be concerned
with whether it works in your case?
-: Well, I think it's a little bit of both.
I think it's how the board is exercising their authority
and how compulsion is being applied in my case,
because without the board knowing
that they have to apply these factors
as the legislature intended and not just throwing in
repetitive and compulsive, because they go together.
-: We don't know what the legislature intended
correct other than the use of the word.
-: Other than the use of the word, yes.
-: But your argument is that we should read in
the psychological testimony requirement
to make the statute individualized
to a particular person thus conform into due process.
-: Yes, exactly.
And-
Kafker: Can I ask question.
-: Yeah, Justice Kafker, I apologize,
I didn't mention that we are all here today.
And Justice Kafker is participating by phone,
Justice Lowy is watching the proceedings by way of Zoom, so.
Kafker: So I have a question related to the brief
from the sworn,
it has to do with the reference to Hansen,
who's the sort of guru of this area
and the some wealth suggests that Hansen has said
that there is proof of compulsion
when a petitioner re-offend after being convicted,
I could not find that in the Hansen literature,
what is your reaction to that?
And has Hansen made that statement?
-: Yes, so it's my understanding that Hansen has made
that statement.
It has been included in various cases.
I believe it was included in this case.
However, it is my position that even though
that statement was made by Hansen,
that is not the culmination of Hansen's opinion
regarding Factor II and repetitive and compulsive.
That was just one statement made by Hansen
that the board is resting on.
-: But I'm confused by that
'cause he really is expert that we've turned to
and he's a psychiatrist, correct?
-: Correct.
-: So does that address the issue
about expert medical opinion?
-: It addresses part of the issue
I submit it does not address the entire issue,
which is that more is needed in this case.
-: How does the Hansen opinion
relate to the statutory interpretation?
Is there evidence that the legislature relied on Hansen
when they wrote Factor II or maybe I'll ask that
to counsel for sure, but how is the Hansen stuff
related to our duty?
-: Yeah, I believe that Attorney Chanelle
would be better out to answer that.
I can say that I know that the regulations,
by the board were based on many of Hansen's articles,
including Factor II.
But as I stated that one-
-: I'm right,
that the statute says repetitive and compulsive.
-: Yes.
-: And that's ultimately what we interpreted.
-: Yes, but the language of re-offending after,
after an intervening episode and that's paraphrasing
is in the Factor II regulation,
and then it cites to Hansen
and the board has made their position known
that that is what they are sticking with
when it comes to compulsion.
-: Which gets us the second level, I guess of compulsion,
not just pure repetitive.
-: Exactly, exactly.
-: Can I go back to your answer to Justice Kafker's question?
You said the reliance on Hansen,
assuming it's in the record and that Hansen says
what has been represented,
you said that answers part of the due process problem,
but not all of it.
What is left in your estimation?
-: I believe I don't,
I'm not sure that I said part of the due process problem.
-: Do you think reliance on Hansen
for the proposition that compulsion is?
I did it once I got caught, I did it again
is suffices to satisfy due process?
-: No.
-: Why not?
-: Because there has to be a psychological compulsion
and an inability to restrict your actions.
-: And you don't think Hansen is talking
about psychological compulsion,
even though that's the field of expertise?
-: It's certainly an element of it.
-: Yes.
-: But it is not the entirety of it.
-: And that's maybe where I misquoted you.
What is left?
-: The psychological component.
I'll give you the example of my client's case years went by
without a re-offense.
And there are certainly many other cases
where 15 years could go by
where there isn't a new re-offense
that is evidence that there is not a compulsion.
-: But I guess the problem with your client's case
is that from incident,
so from incident two to incident three,
he was under investigation for incident two, correct?
-: Unfortunately my client's case
that the timeline is tighter.
But the problem with applying
and back to your question,
the problem with applying Hansen in such a simple way
like that, if they are convicted after being caught,
is that you're not then looking at,
well, this guy was out for 10 years and nothing happened.
How do you equate that with a compulsive offender?
And I think that's why the Hansen opinion should be included
in that psychological compulsion analysis,
but it's not the only part of it that we can look at,
the board would like that
because it is easier to apply it in that form.
But in order to hold somebody at the highest level
and to strip them of their privacy
and to put them all over the internet,
you need more than that.
-: Maybe we can ask attorney Chanelle
what he thinks about the period time period issue.
So thank you very much.
-: Thank you.
I would just quickly,
I would like to address Factor 24,
which is my third argument.
-: Quickly.
-: Just quickly.
The error that I bring to the attention of this court
is that the appeals court found that Factor 24
was applied in error.
And the appeals court stated that they discern no prejudice
from this error and deny the request for remand.
It is my position that when the superior court,
the appeals court or this honorable court finds an error
in an agency decision, it needs to go back to the agency.
The court should not be stepping into the shoes
of the hearing examiner or the agency
and finding that a review of the fact show
that there's still enough evidence
to hold this appellant at a certain level classification.
The board needs to have a little bit more
of a setback when these decisions are being issued
with multiple errors in them.
And I submit that if that is the case,
we won't have as many of these appellate issues going on
and my clients will have fair hearings
and individualized decisions.
If there's nothing further, I'd rest in my brief.
Thank you.
-: Thank you.
Okay, Attorney Chanelle.
-: Thank you, it pleases the court,
David Chanelle for the board.
I'd like to start by saying how glad I am
to be able to be in front of this panel with after COVID,
and as my career winds down, the chances to get in here
get smaller and smaller.
So I appreciate the chance to be in front of you today.
Factor II actually has been resolved.
I've been dealing with Factor II
really since the first time was Justice Milkey raised it
in front of me back in 2000, I wanna say 12.
And we've been going through the process of Factor II,
especially Justice Milkey through a number of appeals.
In fact, just this spring, I finally said to him,
it took you 10 years, but you've been proven right.
Justice Wilkins,
his declaratory judgment eliminated the first part
of Factor II, which is that compulsion can be determined
if there's a separation and time between events
where the individual has the ability
to reflect on the wrongfulness of their conduct.
And there really was no research for that.
And starting in 2012,
I know in our office and myself included,
had long debates about Factor II
and how it should be applied
because of what Justice Milkey was raising.
And then what happened was
when Justice Wilkins made that decision,
we reassessed Factor II.
And the reason was,
is because the two articles that the board relied on
to make Factor II are both Hansen articles
and they did not support
the idea that compulsion can be determined
by allowing an individual time to ruminate
on his wrongfulness.
It really had to do with enhancing was clear about it.
It was having an intervening event.
So what the board has done after the declaratory judgment
has decided we're not going to appeal that decision.
We are now gonna tailor our future decision making
based on the factor,
only having two components that the individual's
been confronted by someone or investigated by an agency
or an authority or the highest level for someone
who commits a sex offense
after being criminally investigated
or convicted of a prior sex offense.
So that's the board's position now.
And every decision since Justice Wilkins
declaratory judgment has encompassed that philosophy
of Factor II,
where in the process of trying to rewrite the regulations,
including Factor II, to reflect that,
but as the court's aware, that's a long process.
So in the interim,
what the board is doing is making sure
that all the hearing examiners and board members
adhere to the declaratory judgment by Justice Wilkins,
it is very clear and Justice Wilkins
excites it very effectively.
All of the Hansen studies...
Oh, I'm sorry-
-: Justice Kafker has a question.
-: I'm confused then, what is the standard?
So it's not that a conviction,
I mean, a re-offense after a conviction is not compulsion,
or it is?
I'm confused where you are now.
-: But when Dr. Hansen testified in front of the board
in 2014, he said we were misapplying Factor II.
That Factor II could only be applied
if an individual had been confronted or investigated
or criminally charged or convicted,
and then commits another sex offense.
That was Dr. Hansen's position in 2014,
he's maintained that position.
It was the position in the research articles
that were used for Factor II.
And that's why the board has decided that
after the Justice Wilkins decision,
and if you read Justice Wilkins declaratory judgment,
he clearly talks about the position of Dr. Hansen,
the research underlying the board's Factor II.
And the fact that there has to be that intervening act,
if you wanna show repetitive and compulsive behavior,
the idea is that if an individual say in this case
is criminally convicted of a sex offense-
-: Mr. Chanelle, just one clarification.
So past this time and repetitiveness is no longer is enough,
but test a victim and to re-offense
is enough to prove compulsion.
-: It's not the re-offense,
it's having an intervening event between offenses
where the individuals confronted
either by an authority or is criminally investigated,
or is criminally charged or is convicted.
One of those events has to happen
between the two sex offenses
for it to be within the parameters of Factor II.
Kafker: Okay, and the next question is like,
I tried to track down Hansen's testimony,
but is it in our record somewhere?
'Cause I look at your brief and the attachments,
I can't find it.
-: Truthfully, it's been filed with so many cases.
I am not positive it was filed with this case.
I don't know, off the top of my head.
I'm looking, trying to,
now that everything's online and you get volumes online,
I'm used to having papers that I can look at.
And I can't really remember if Hansen's testimony
was actually in this record,
it's in numerous cases over the years.
-: We're gonna have to look through, I think it's not.
So we're gonna gonna have to look at records,
attached to other cases to find this.
-: I'm sure the board can provide a copy of it
to the court if the court so decides.
-: I would like to see it.
-: Okay.
Kafker: Mr. Chanelle, can I ask you,
I'm sorry, Justice Kafker, are you done?
Kafker: Yes, I'm done, sorry.
-: Thank you.
Are there any other areas or any areas
within the statute of regulations
that require expert psychological testimony?
-: The whole idea beside that the legislature
created the sworn.
It wasn't supposed to be a battle of the experts,
and that's because the individual is not facing
in any type of incarceration or commitment.
-: Do you differ that there's a due process
component to this?
-: Well, the due process component,
due process is limited in these cases,
in the sense that you're only talking about Liberty interest
and privacy interest, you're not talking about individual
who's gonna be, like I said, committed in any way.
So basically the regulations-
-: Are restrictions with obviously
that give rise to due process.
-: Correct.
But-
-: And you can finish your answer.
So the wind up was because there it's not incarceration,
there's due process, but it's more limited.
And then there's no requirement in anywhere
in the regs for a psychological testimony.
-: Correct, in fact,
case law specifically says that due process
is satisfied when the individual
has an individualized hearing
in front of a hearing examiner,
that the hearing examiner writes a decision
that's factually is based on substantial evidence.
And that the individual has a right to both
superior court review and appellate review.
And the case law said that that satisfies
the provisions of due process in these cases.
Again, if you look at the Doe 89230,
the court specifically says that
the board's not required to provide psycho
or psychological evidence or any type of expert testimony
in that area.
It does say that the board should give funds
where an individual.
And I think Justice Kafker
can probably knows more about this than I do
'cause he wrote bill 151564,
but the only two times the board is really required
to give expert witness funds is when the individual
has a condition or a circumstance special to them
or that affects their impacts
their risk and re-offense or dangerousness,
or if the individual raises an issue
that is not covered by the board.
Now I did 205614,
where it was a female sex offender
and it was successfully argued by the other side
that the board's regulations didn't
encompass female sex offending behaviors,
'cause they were different than men.
And therefore an expert should have been given in that case.
-: To cover Justice Kafker's case,
if someone before the board,
a petitioner asked for an expert witness
to help them disprove compulsion,
would that be covered by the expert witness fee?
-: No, because again,
if the board's regulations
and I think that's a good example,
Justice Kafker's case involved the issue of age,
at one time,
there was no regulation for aging offenders
and of course that's been remediated since then,
but in this case Factor II is repetitive and compulsive
based on the research that was done
and the board is obligated,
the hearing examiner is obligated to follow
the board's regulations in giving a decision.
Now having an expert come in and say that someone
like in this case who gets arrested is convicted.
And then in 2005 commits another sex offense
against a teenager,
and 2007 is investigated for that sex offense.
And then while that does a polygraph in April
and then while that's going on that investigation
that he's aware of three months later
sexually offense against another teenager
that he actually had come to his house.
I think that that shows this individual
is repetitive and compulsive
and the compulsive nature of this is the fact that he knows,
he knows what the criminal possibilities are
and he knows what the social ramifications are
of his actions and he still does it.
-: To answer my question,
that person would not be entitled under our case law
to an expert witness.
-: Correct.
-: Can I ask about the lack of time,
lack of a time component here,
because it seems like that would fly in the face
of the plain meaning of compulsive,
which is someone not being able to help him or herself.
And even if there's a investigation or conviction
or confrontation
and the next event isn't until for 10 years,
why wouldn't we be looking at the length of time
that has passed between the offenses?
-: The idea, the thing about the factors
that around sex offending behaviors
is that they're high risk factors,
Factor II, especially a high risk factor.
Now what happens is the idea is this individual
who commits after being confronted or,
and it might be years down the road,
he knows what the ramifications of his actions are
and he still does it.
Now, you see this with sometimes with pedophile cases
where they commit an offense,
then they go into remission and then years later,
they start up again.
That doesn't mean that somewhere in between their compulsion
is invaded, it was just submerged for a while.
And that's generally what you see in these kind of cases.
This individual is convicted of sex offense
in '98 against a child.
And then in 2007 is investigated for a 2005
and three months after the investigation he does it again.
-: Yeah, I understand as the time period.
Right, right.
I understand the time period here,
but I'm saying as applied for anybody,
why shouldn't we consider time in terms of compulsion?
And sounds like your answer is if the person re-offend,
even if it's not for 15 years,
the compulsion was just submerged or-
-: That would be the, well, again,
we're basing it on the interpretation of Factor II
as declared by Justice Wilkins.
And based on the research is that that an individual
who knows what the ramifications are and does it,
no matter how far down the road,
he knows what he's doing the second time.
And he knows what could happen to him
and he still does it.
That's the repetitive and compulsion.
-: Why isn't that just repetitive?
-: Because again,
if he's already been confronted once
and knows what the ramifications are
under what we now know is the,
or the board's interpretation of Dr. Hansen-
-: But even if there was a 15 year break
between incident and as applied, it's a different case
to this case.
-: Correct.
-: But as far as broad pronouncements,
as the chief is asked if there's a 15 year break
in between incident one and incident two,
and the person doesn't re-offend for 15 years,
and they're not incarcerated, which is the issue here,
you would say, it's still compulsive.
-: I'd say Factor II, still applies.
-: And that nothing would preclude the petitioner
from arguing.
No, there's this 15 year gap.
So therefore it doesn't apply.
And it would be up to the hearing examiner
to weigh that evidence.
There's nothing in the regulation, right?
That would preclude the argument.
It's not automatic.
-: The other arguments raised quite a few times.
In fact, I have a case,
I think it was argued recently where the individual
had stayed outta trouble from 2010 to 2019,
and wanted the board to accept those 19 years
as proof of offense free time in the community
of nine years between the sex offenses.
-: And what did the board say?
Did the board-
-: The board didn't accept that 'cause it was-
-: Well, does the board ever accept that argument?
Because I mean, it sounds like you're saying that
if you have this situation,
then Factor II applies and that's how we do it.
That's how the board does it.
-: Well, it's hard to argue
that he had nine years of offense free time in the community
when he is committed a new sex offense.
-: And counsel, that doesn't mean just because you catch him
in 1990 and again in 2000,
that doesn't necessarily mean there weren't incidents
that nobody caught him for.
So when we talk about this,
we're talking about legal definitions only,
and not some version of reality
that you're only dealing with the criminal record.
You're not really knowing for sure
what's going on otherwise.
-: Correct-
-: I'm sorry.
-: The reality is with all of these factors,
the impact of the factors can be reduced
by certain things such as offense free time in the community
or advanced age I had,
I don't know if I people remember Doe 10800 from 2009,
but that case was a serial pedophile.
And I never thought he'd ever get reduced.
And this spring, after 30 years of offense free time,
at the age of 72,
he was reduced to a three to a one.
So these factors are high risk factors,
but they can be mitigated with certain mitigating
or circumstances that change over time.
-: Maybe I'm just being...
Maybe I don't understand,
but just, I guess to satisfy my curiosity.
So going back to the hypothetical myself
and the chief were asking about the 15 year break,
would there have to be evidence to satisfy
the now revised reg under the Hansen research
that the person knew they were under investigation
close to the second offense?
-: Well, I think that they would have to know,
because that would be the intervening event.
If they didn't know,
then it would be just what would Hansen would describe
as a cluster sex offense behavior.
Whereas he had to know he's being investigated.
And we know he knew 'cause he did a polygraph in April
three months before he committed a sex offense-
-: Forget what these facts I'm just talking about.
-: But he would have to know.
I mean the whole idea,
the intervening event is that the offenders on notice
that he's either being investigated
others know about his behaviors
or that the police are involved in investigating him
or, and if he still goes forward, that's where factors.
-: But wasn't the question,
does the intervening event,
does the timing of the intervening event matter
whether it was close to the second offense
or does it not matter?
-: It would matter in the sense that the closer it is,
the more impactful his sex offending behavior is
on his risk and danger, Factor II applies-
-: Does the board look at that though?
Does the board take a look at that?
-: Oh yeah, the board.
In fact, in this case,
the hearing examiner was very clear
that really the two sex offenses that occurred afterwards
because they were so close in time
that he was being investigated for the first one.
And that she pointed out that there were six,
I believe no five factors that were now applicable
that were not applicable in 2003,
that he sexually offended against a stranger,
that he sexually offended in a public area
and a bed with other people in the bed,
that he had now had shown that he has diverse victim types
and diverse sexual behaviors.
So the hearing examiner not only took into account
that there was a closeness to these sex offenses
and he did one while he was being investigated,
that really ramped up his risk in danger.
But on top of that,
it also allowed the hearing examiner to apply
a numerous more high risk factors
that were not applicable in 2003
when he was made a level two.
Kafker: Can I ask one follow up question
about Hansen's research?
Did Hansen addressed this long path of time issue?
-: To my knowledge, no.
Kafker: So he's not written on the chief's question,
which is if 10 or 15 years pass,
whether that would still be evidence of compulsion.
The cases he's asked to fine have been closer in time.
-: Truthfully, I've read a lot of these research articles
probably more than I wish I had to.
And I've never seen Hansen address the issue of time
between sex offenses as any barometer of repetitive
or compulsive behavior.
I haven't seen that.
And I think the most recent one I read was a 2017 study.
And again,
that didn't really focus on repetitive and compulsive
that focused more on the viability of the static 99R.
But it also did not address that time period
between events as having any impact
on the application of the idea of.
Kafker: And in this case, we really don't have a,
he's been in prison through,
the past time board, the fact's in prison, right?
-: Right.
Kafker: Okay, thank you.
-: But the court,
this court said in Doe 496501,
that if an individual's been incarcerated
for a long period of time,
the board is required to look at his sex offending behavior
to get a holistic view of the individual
for classification purposes.
-: Remind me, counsel,
what factor addresses the length of time between offenses
or offense free time?
-: Offense free time is Factor 28.
-: Thank you.
-: I was gonna confuse it with 29, but 28.
You think of all these years, I'd be able to whip it off,
but I have to think about it still.
-: Pretty good job right there.
(all laughs)
Okay, so everybody all set.
-: All set too, thank you.
-: Thanks so much. -: Thank you very much.