Two years ago, the Plymouth County DA's Office said they dropped the ball when they did not ask a judge to civilly commit Gardner as a sexually dangerous person. Gardner ended up going back to jail days after his release on a Rhode Island probation violation. That's when the Plymouth DA tried to ask for a civil commitment.
Fay, who is also a criminal defense attorney, knew that request would not stick.
"As much as I don't want him to be out, it is a violation of due process. He was physically in Massachusetts but he was in the custody of Rhode Island," said Fay.
The SJC has now ruled that Plymouth County should have requested the civil commitment two years ago when Gardner was originally released, not on the Rhode Island probation violation.
Gardner is now expected to be released.
The Plymouth DA told WFXT:
"We respect but are deeply disappointed by the court's decision. We have referred the court's decision to the Attorney General's Office for their determination in asking the United States Supreme Court to accept the case for further appellate review."
Since Gardner is technically a Rhode Island prisoner official say he would register as a sex offender under their laws.
Massachusetts officials say he would be allowed to visit family in Weymouth.
"He is going to be under the radar so there is no way of us knowing so we have to be on high alert at all times for our children," said Fay.
Massachusetts did say if Gardner lives here on a part-time basis with his family he would have to register as a sex offender with his address.