Freed by judge, sex offender held after MGH attack

Prosecutors had asked that man remain in custody

David Flavell was arraigned yesterday. David Flavell was arraigned yesterday.
By Jonathan Saltzman and John R. Ellement
Globe Staff / October 24, 2009

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Since 1996, David Flavell has spent several years in jail in Massachusetts and New Hampshire for repeated sexual offenses, including touching himself in public, peeking under a stall in the women’s bathroom at a Borders bookstore in Braintree, and assaulting a woman with intent to rape in a Methuen parking lot.

But when state prosecutors twice tried to have him civilly committed as a sexually dangerous person, judges in 2006 and last month ruled that he did not meet the state’s legal standard for commitment.

“I am not convinced, to a reasonable and moral certainty, that Flavell is ‘likely to engage in further sexual offenses if not confined to a secure facility,’ ’’ Norfolk Superior Court Judge Janet L. Sanders wrote on Sept. 15, quoting the standard.

On Thursday, authorities said, Flavell proved the judge wrong.

That afternoon he allegedly grabbed a 27-year-old female employee of Massachusetts General Hospital inside a hospital restroom, beat her head against the floor, and ripped her pants. The woman, whose job was not identified by authorities, fought off her attacker, but had a bloody face afterward. She was treated and released.

Yesterday, the 40-year-old homeless man was arraigned in Boston Municipal Court on charges of assault with intent to rape and assault and battery with a dangerous weapon, the floor. He was held without bail pending a psychiatric evaluation on Tuesday.

The violent attack unleashed criticism of the judges who declined to find Flavell, who was deemed a Level 3 sex offender by the state Sex Offender Registry Board, sexually dangerous.

Bristol District Attorney C. Samuel Sutter, whose predecessor asked Bristol Superior Court Judge Richard T. Moses to commit Flavell in January 2006, said prosecutors clearly showed then and again this year that Flavell was escalating his behavior.

“The incidents kept getting worse,’’ Sutter said in a telephone interview yesterday. “That was the pattern. Why the judges missed that pattern . . . you’d have to ask somebody else. . . . But he should have been held in 2006, and he should have been held in 2009.’’

Norfolk District Attorney William R. Keating declined to directly criticize Sanders for rebuffing his prosecutors five weeks ago.

But he said his office would not have sought Flavell’s commitment if they did not fear he was likely to commit a serious sex crime.

“We certainly made our argument strongly in court,’’ Keating said.

Neither Moses nor Sanders can discuss Flavell’s case because the state Code of Judicial Conduct prohibits judges from commenting on pending cases, according to Joan Kenney, a spokeswoman for the courts.

Kenney did, however, outline the legal standard judges must follow when committing defendants to the Massachusetts Treatment Center in Bridgewater for an indefinite period after their jail sentence is up and potentially for the rest of their lives. The standard, she said, is high.

There were 295 people committed to the treatment center on Jan. 1

A judge or jury must be persuaded beyond a reasonable doubt that the individual has a “mental abnormality’’ or “personality disorder’’ that makes him or her likely to commit another sexual offense if not confined.

Likelihood, she said yesterday, is not simply determined by statistical probability. The Supreme Judicial Court has said the judge or jury must weigh the seriousness of the threat against the relative certainty of it occurring, together with the possibility that other forms of treatment could prevent another offense.

Michael F. Farrington, the Mattapoisett lawyer who defended Flavell at the second dangerousness hearing in Norfolk Superior Court, pointed out that three of five forensic mental health experts who testified concluded that his client did not meet the standard.

Sanders, like Moses before her, appeared persuaded that Flavell suffered from the mental abnormality of exhibitionism, but that it was less serious than other sexual misconduct and did not make him a public menace.

“David, unfortunately, is afflicted with a condition where he compulsively exposes himself,’’ Farrington said yesterday. “But he’s not touching anybody, he’s not hurting anybody. That’s why he’s not sexually dangerous.’’

The new assault charge against Flavell is “totally out of character,’’ Farrington said.

Flavell was placed in a series of foster homes until he was adopted by an East Bridgewater couple at the age of 2, according to court documents. He graduated from high school, where he played football and track, in 1987 and went on to two years of community college.

Flavell has held various jobs including at Shaw’s supermarket, Costco, and UPS, the court documents said. He has also had problems with alcohol abuse and attended Alcoholics Anonymous classes while incarcerated.

Over the past 13 years, Flavell has been arrested at least a dozen times, often for exposing himself or masturbating inside department stores and on the grounds of shopping centers.

But there was at least one prior act of violence, according to the rulings of judges at both dangerousness hearings.

In December 1996, he had a fight outside an American Legion Post in Methuen with a woman he had met at the bar and shared drinks with. He punched and kicked her and then removed her shoes, pants, and underpants. But then he had a change of heart and helped her get dressed and brought her back to the bar to get medical attention.

Over the years, he repeatedly exposed himself and engaged in other bizarre behavior, including calling agencies that treat sex offenders and telling them he wanted to molest children or had already done so. Authorities concluded that his statements were false.

In February 2008, he was arrested for accosting a woman at a Borders bookstore by following her into the restroom and peeking under the stall door. Police found duct tape, a ski mask, and gloves in his car when he was arrested a few weeks after the incident, but Farrington said Flavell had the items because he was working as a day laborer outdoors.

About 3 p.m. on Thursday, Flavell allegedly followed the Massachusetts General employee into the bathroom.

Police gave this account: The woman was washing her hands and asked Flavell whether it was the men’s room. He replied no, then grabbed her from the side, wrapping one arm around her throat and the other around her waist. He threw her to the ground and struggled with her, police said, punching her in the face and slamming her head against the floor while shouting “shut up!’’ At one point, he ripped her pants, but the woman managed to crawl to the restroom door and got out.

“She had blood covering her face,’’ Assistant Suffolk District Attorney David Deakin said at yesterday’s arraignment, where Flavell pleaded not guilty.

Flavell was detained by hospital police and turned over to Boston police.

The hospital said in a statement yesterday, “This incident was upsetting for all of us at the institution, but fortunately, it was an isolated and highly unusual event.

Neil Madden, Flavell’s court-appointed lawyer, told reporters after the arraignment that Flavell had been drinking Captain Morgan rum before the attack, is prescribed Prozac for depression and other psychiatric conditions, and has no memory of the incident.

Suffolk District Attorney Daniel F. Conley called it a “brazen attack’’ and credited the woman for fighting off her assailant.

“We’re using every tool at our disposal to keep this man off the streets,’’ he said.

Correction: Because of a photographer's error, a photo caption in a Page One story in Saturday's Globe about an assault at Massachusetts General Hospital misidentified the building. The photo was of Boston Health Care for the Homeless's Jean Yawkey Place, a health care facility.