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SAN JOSE — Santa Clara Superior Court Judge Robert Baines, who ordered supervised release for repeat child molester Brian DeVries in February, said Wednesday that he’ll soon have to consider unconditional release if authorities can’t find a place for DeVries to live. DeVries is set to become the first sex offender released after treatment under the Sexually Violent Predator Act, the 1996 law that allows prosecutors to keep certain sex offenders confined for treatment indefinitely. At a hearing Wednesday morning, Deputy Public Defender Brian Matthews argued that the four months of delays amounted to due process and constitutional violations and asked the judge for a hearing to consider unconditional release for DeVries. Baines seemed to agree and set a June 27 hearing date. “Those concerns are becoming ever more pressing. I am troubled with the time schedule,” Baines told the courtroom audience, noting that DeVries has remained at Atascadero State Hospital during the months the Department of Mental Health has looked for housing. “That does become illegal. That does become unconstitutional. We are getting close to that.” Baines also ordered the Department of Mental Health to look for housing outside of Santa Clara County, despite objections from the state. Meanwhile, the politically charged case filled the courtroom Wednesday with alarmed Santa Clara residents who want to keep DeVries out of their neighborhoods. The case is putting the spotlight on Baines, who applied to Gov. Gray Davis for a seat on the Sixth District Court of Appeal. His name has been circulated by the Judicial Nominees Evaluation Commission. In an interview Wednesday, Baines acknowledged that Davis sent him a letter in March urging him to reconsider his conditional release order. But Baines said politics won’t influence his decisions in DeVries’ case. “I have no way of knowing if this is a factor in the governor’s mind in making the final decision for the Sixth District,” Baines said. “While he is entitled to his opinion, it’s not a factor that I can or would consider.” Baines said his role as a judge “is pretty clear. Every judge would behave the same way. We have to make decisions [that are] publicly and politically unpopular.” DeVries, who has been in Atascadero since 1997, has admitted to molesting nearly 50 children. But Santa Clara prosecutors don’t oppose conditional release. Deputy DA Dana Overstreet notes that DeVries has completed treatment, has been castrated, and six mental experts have recommended supervised release. Unconditional release is a different story, Overstreet said Wednesday. If unsupervised, “he is a walking three-striker.” But even she agrees continued delays in finding a home for DeVries could force Baines to grant unconditional release. “The public defender isn’t screaming that loudly,” Overstreet said, noting Matthews waited four months. “He is trying to do the right thing for everyone.” But, she added, “at some point, I am going to have to agree with him it’s unconstitutional.” Overstreet also backed Baines up on his earlier ruling. “He took a huge political hit when he made the [February] decision,” Overstreet said. “I think he should be commended. I disagree with him morally, but legally he did the right thing.”

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