BOSTON — The state's long-running battle to keep convicted child rapist Wayne Chapman in custody is now in the hands of the state's highest court.
Chapman is trying to win his release after decades behind bars, but the state believes he is still too dangerous to release.
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In June, Chapman was hours away from getting out when he was charged with exposing himself to prison staff at MCI Shirley. The case is still pending, but now in a new filing to the state's highest court, the state says Chapman did it again in July and it's being used as evidence to try to convince the SJC that Wayne Chapman should not be released.
Attorneys for Chapman had long argued that at 71 and confined to a wheelchair, Chapman is too old and too sick to re-offend. Two qualified examiners also found him no longer sexually dangerous, saying he should be released.
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But the SJC is fighting back and in the state's appeal, for the first time, we are hearing about a new alleged incident that took place on July 16, 2018 at MCI Shirley.
The DOC says Chapman exposed his genitals to a female officer making her rounds and that he had to be told three times to cover up.
This alleged incident took place weeks after Chapman was charged with exposing himself to prison staff, giving fuel to the state's argument that he is still dangerous.
"They're just going to say, See? Look, it's still happening, even at this point and it's going to factor into their argument tomorrow," said Boston attorney Brad Bailey.
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Wayne Chapman is a notorious offender who has served decades in prison. Last year, two experts found him no longer sexually dangerous and under a 2009 SJC decision called Johnstone, that meant Chapman's automatic release.
But now, the state is asking the SJC to throw out Johnstone, saying it's wrong to take at face value the word of two experts without the opportunity of challenging them:
"Johnstone should be overruled because it creates unintended consequences that threaten public safety and diminishes the public's confidence in the judiciary."
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Bailey says it's a rare request, but not unprecedented.
"Just because this decision has been made, it doesn't mean we can't ask you to overturn it, justices or to reconsider it, the Commonwealth seems to be saying, if ever there was a case for you to do it, it's with Wayne Chapman."
"This court should overrule it [Johnstone] because as this case shows, it creates unintended and dangerous consequences that threaten public safety," state DOC attorney Mary Murray said before the SJC on Tuesday.
"Everyone wants more accountability. This case is Exhibit A in the big pile of proof the system is currently not working as it should from the perspective of public safety," said Wendy Murphy, the Boston attorney who is representing several victims in the case.
But Chapman's attorney Eric Tennan believes the experts got it right, that Chapman is no longer dangerous.
"The Commonwealth keeps saying that there are some serious public safety issues and yet they can point to none. Other than they don't want Wayne Chapman released," said Tennan. "At some point, you say two qualified doctors, doctors who have a certain amount of expertise we trust them to do their job. It's the only way we can continue this system both functionally constitutionally."
It could be months before the SJC reaches a decision.