Writ of Habeas Corpus
Content
State of Vermont Superior Court Lamoille Unit Civil Division Docket Number 39-2-11 Lecv In re: William Bennett
Reply to State¶s Response to Petition for Writ of Habeas Corpus and State¶s Motion to Dismiss
Comes now William Bennett, by and through the undersigned counsel, and hereby files this reply to State¶s Response for Writ of Habeas Corpus and Motion to Dismiss, and respectfully replies as follows: The State¶s Legal Argument is divided into 6 sections, A, B, C, D, E, F, and for clarity¶s sake, this reply will address each section separately. A: The State asserts ³Civil Commitment Under Act 248 is not analogous to Imprisonment.´ The State cites Addington v Texas, 441 US 418, 428(1979)as follows: ³The US Supreme Court has noted that a civil commitment proceeding should not be constitutionally equated with a criminal proceeding because the state is not acting in a punitive manner«´
The State is mischaracterizing Addington; in actuality Addington, and the cases cited in it, support the premise that Mr. Bennett¶s confinement is unlawful. In Addingtonthe US Supreme Court spoke of an individual¶s due process protections in civil commitment proceedings, and the standard of proof in those proceedings. Civil commitment is not like criminal process, when it relates to standard of proof: A "clear and convincing" standard of proof is required by the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital. Addington, 425-33. In Mr. Bennett¶s case, the Court did not make ³ clear and convincing´ findings. Addingtonheld: (a) The individual's liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity, compared with the state's interests in providing care to its citizens who are unable, because of emotional disorders, to care for themselves and in protecting the community from the dangerous tendencies of some who are mentally ill, that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence. ibid 425-427. In Addington, the US Supreme Court recognized the individuals¶ liberty interest in a civil commitment: ³This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See, e. g., Jackson v. Indiana, 406 U.S. 715 (1972); Humphrey v. Cady, 405 U.S. 504 (1972); In re Gault, 387 U.S. 1 (1967); Specht v. Patterson, 386 U.S. 605 (1967).´
In Jackson, the US Supreme Court determined that the State violated an individual¶s due process when it civilly committed him for an indefinite amount of time solely on the basis of his incompetence to stand trial. Further, the US Supreme Court has held that the writ of habeas corpus applies in civil commitment proceedings: In Humphrey, the prisoner was held under Wisconsin¶s sex-crimes act, and the US Supreme Court reversed the lower Court¶s denial of the habeas petition. Spechtcites Baxstrom v Herold, 383 US 107: ³Commitment proceedings, whether denominated civil or criminal are subject to the Equal Protection Clause of the 14th amendment«´ Vermont case law also contradicts the State¶s premise that the writ of habeas corpus does not apply in Act 248 proceedings: ³The writ of habeas corpus can reach behind prison walls and iron bars, but it is not a static, narrow, formalistic remedy; its scope also includes the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.´ In re Huard, ( 1965) 125 Vt. 189.
Vermont Title 12 Chapter 143, entitled ³ Habeas Corpus´ subsection 3951 states simply: Unlawful Restraint A person shall not be restrained or imprisoned unless under authority of law. In addition, the ³treatment´ provided Mr. Bennett under the Act 248 Orders is oppressive and actually more a restraint than that of someone on furlough status: Mr. Bennett is under constant 24 hour supervision, cannot leave his residence
without express permission and must be accompanied at all times ( eyeball supervision); his outings( when not with his mother) are usually limited: his world consists of trips to the local mom and pop general store, or a local discount store. Under Act 248, he has been denied access to use the phone, access to meetings with counsel, access to telephone calls to counsel, and access to contact with his family. In addition he is subject to arrest for ³elopement´ if he is not where his service providers decree he must be. Every one of his thoughts are monitored; on at least one occasion his room has been searched and his personal property illegally seized by a team of no less than four persons: one DAIL¶s representative as well as by three of his state authorized treatment providers, all acting in unison. Mr. Bennett asserts that Act 248 commitment is analogous to imprisonment. Mr. Bennett¶s Act 248 Civil Commitment, and the restraint which follows pursuant to the Court Order is strikingly similar to Jeremy Bentham¶s ³Panopticon Prison,´ where prisoners are observed without knowing they are being watched, and which in the year 1787, Bentham described as ³a new mode of obtaining power of mind over mind, in a quantity hitherto without example.´ The State also suggests that Mr. Bennett entered a stipulation with advice of counsel---this is untrue. A review of all the Act 248 Orders in Mr. Bennett¶s case reveals he did not sign anything whatsoever; the transcripts of the hearings( Exhibit A and B) indicate he was never questioned, and did not verbally participate. The State might make light of all these deficits but the undersigned cannot imagine a plea agreement without a defendant¶s signature and a verbal interaction with the Court; yet that is essentially what occurred in Mr. Bennett¶s case.
The US Supreme Court has addressed the issue of a silent record, as well as the Constitutionality of defendant¶s waiving their rights through counsel. In Boykin v Alabama, 395 US 238, a black man in Alabama pleaded guilty to five counts of armed robbery, and was sentenced to death. The Court made no inquiry as to whether his guilty plea was knowing and voluntarily. The US Supreme Court found it was plain error to accept the Defendant¶s guilty plea without determining first that it was knowing and voluntarily made, and the US Supreme Court reversed the conviction. The US Supreme Court wrote ³Presuming waiver from a silent record is impermissible.´ The Court then cited Carnely v Alabama, 369 US 506, 516, ³ the record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver«´ The Court also cited Douglas v Alabama, 380 US 415, 441: ³The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards.´ In Mr. Bennett¶s case, Mr. Bennett had a right to due process under the US Constitution Fifth and Fourteenth Amendments- -to have ³ the opportunity to be heard´ which is referenced in VRFP 6.1(d) (2), prior to depriving Mr. Bennett of liberty. In 2006, Mr. Bennett¶s Counsel unilaterally waived that right to due process, to a hearing, for the opportunity to be heard. Mr. Bennett did not make a knowing, and voluntary waiver of his rights. He also did not personally enter an admission to the Merits. The transcripts are silent on his participation. That is the silent record referenced in Boyken: ³ Presuming waiver from a silent record is impossible´. Ibid There is another US Supreme Court on point: Johnson v Zerbst, 305 US 458, 1938. In Johnson ,the Defendant was convicted after trial. The Court reversed and
remanded the case because the Defendant did not competently and knowingly waive his right to counsel. In Mr. Bennett¶s case, since he did not participate in the proceedings, there was no knowing waiver of a hearing, or of his constitutional right to appeal, and no admission--a US Constitution fifth and fourteenth amendment as well as a Vermont Constitution article 4 violation. He was deprived of life and liberty without due process of law.
The State asserts in letter B, ³ Failure to State a Claim on which relief may be granted.´ The State portrays Mr. Bennett¶s habeas petition as some sort of collateral attack, and asserts that the Caledonia District Court had full authority to issue the Order. The State cites in re: M.A., 2011 Vt. 9 and 18 VSA subsection 8840. Unfortunately for the State¶s argument that the Court in Mr. Bennett¶s case had full authority to issue the Act 248 Order, the facts in ³ in re M.A.´ are very different than Mr. Bennett¶s case: the Defendant in M.A was charged with Lewd or Lascivious Conduct with a Child and Sexual Assault²and the victim in in re M.A. was 9 years old. Thus, in in re: M.A., the Court had subject matter jurisdiction and authority to issue the order under Act 248. In Mr. Bennett¶s case the alleged victim was 19 years old, and in Mr. Bennett¶s case he was not charged with lewd or lascivious conduct with a child, or sexual assault²which is required by the Act 248 statute; thus the Court lacked authority to issue the Order in Mr. Bennett¶s particular case. The State also contends that ³ a writ of habeas corpus is not available to cure technical defects«´ Mr. Bennett is not asserting mere technical defects: in his habeas petition he asserts serious denial of due process. In addition, the US Supreme Court has held that habeas relief applies in civil commitment proceedings; see Jackson v Indiana and Humphrey v Cady, supra. Thus, the
State¶s claim that Mr. Bennett fails to state a claim on which relief may be granted, is incorrect.
Letter C of the State¶s response is ³Petitioner is Collaterally Estopped from Raising Issues Necessarily and Essentially Determined in Previous Proceedings.´ The State¶s logic attempts to discard all habeas petitions(a right which is constitutionally guaranteed) and all Post Conviction Relief Proceedings. As far as the mother¶s /GAL Ms. Gilman¶s agreement with the outcome²there is absolutely no Court order in the record which contains Ms. Gilman¶s or Mr. Bennett¶s signature; in addition, there is no indication that Ms. Gilman or Mr. Bennett stipulated or agreed to anything, on the record in open court, be it on October 31, 2006, or November 17, 2006, the date the Act 248 Order was issued. In fact, a review of the transcript of November 17, 2006, does not even indicate that Ms. Gilman was present in the courtroom. Ms. Gilman was never asked her agreement/consent on the record, and neither was Mr. Bennett. The court simply cannot assume waiver from a silent record. This is the unconstitutional silent record which violated due process and resulted in reversal in Boyken v Alabama and Johnson v Erbst, supra. The undersigned has witnessed dozens of times when clients/defendants seem about to enter a plea in open court, and it appears this will occur right up until the last nano-second²and the client/defendant changes his/ her mind, and does not enter a plea. Employing the logic of the State, that same client would be guilty merely because the client was present in the courtroom, or merely because they were ³about´ to enter a plea of no contest or of guilty, or worse, because that client/defendant¶s attorney thought and stated on the record that the client was
guilty. The State¶s logic leads to a disturbing outcome: a return to the Star Chamber proceedings of medieval times.
The State contends in D: There was no requirement of Guardian or GAL participation. The State is incorrect: Vermont Rule of Family Procedure 6.1 provides for ³Representation by Attorney and Guardians Ad Liter in Specified Proceedings´ VRFP 6.1 (a) states that the rule applies to proceedings under 18 VSA 206 ( which is the Act 248 statute). Neither Mr. Bennett, nor his GAL Tracy Gilman (who was and still his legal guardian) participated in court proceedings on October 31, 2006 or November 17, 2006. The fact that Mr. Bennett and Ms. Gilman, both laypersons, were present in Court on October 31, and stood passively while counsel stipulated that Mr. Bennett was incompetent to stand trial, does not a knowing and voluntary stipulation make. Despite Attorney Willey¶s sincere and honest recollections, five years after the fact, of Mr. Bennett¶s and Ms. Gilman¶s ³consent´ to the Act 248 Order there is of course absolutely no way to predict what Mr. Bennett or Ms. Gilman would have said had they been asked on the record; or if they had been given the stipulation to sign there is no way to predict whether either of them would have signed it, and in addition Mr. Willey¶s recollections, however sincere, are speculative and hearsay. Obviously Ms. Gilman and Mr. Bennett were not invited to sign the Stipulation, so there are no conclusions that can be drawn as to consent. What we
do know from reading the Act 248 order, and reading the transcripts, is that neither Mr. Bennett nor Ms. Gilman made a knowing and voluntary waiver of Mr. Bennett¶s constitutional rights, and further, there was no finding by the Court that they had, and they were not advised of their right to appeal. The 2006 Order and Stipulation, and all subsequent Act 248 Orders in this case, are silent on whether: there is a factual and legal basis for the waiver or admission; that the attorney for the respondent has investigated the relevant facts and law and consulted with the respondent and guardian ad litem and that the guardian ad litem has spoken with the respondent; that the waiver or admission is being entered to knowingly and voluntarily by the respondent and also by the guardian ad litem, except as set forth in paragraph (3) ³ approval without respondent¶s consent´ ( please see VRFP 6.1 (d)(2). In Letter E, the State contends´ Petitioner¶s Conduct, not the State Attorney¶s Charging Decision, is Key to Determining Whether the Petitioner Presents a ³Danger of Harm´ to the Public. The State quotes from Corporal Gordon Lambert¶s affidavit in which he describes allegedly assaultive encounters; in one of which there are allegations of abrasions and cuts; there are allegations that Mr. Bennett attempted intercourse; allegations that Mr. Bennett attempted bodily injury( the State writes in its Response ³ serious bodily injury´²yet those words are not in Gordon Lambert¶s affidavit) by putting his hand around the alleged victim¶s neck. The common denominator here: uncharged heresay allegations in the probable cause affidavit. The case directly on point here is State v Stamper, 2011 Vt. 18( filed February 7, 2011). (Please note: at the time of writing Stamper¶s specific pages cites were unavailable).
In Stamper, the Vermont Supreme Court reversed the trial court¶s denial of Defendant¶s motion to dismiss for failure to comply with sex offender registration; the trial court had relied on uncharged allegations in the petition, just as the State attempts to do in Mr. Bennett¶s case. In Stamper, Defendant pled no contest to a charge of ³lewd or lascivious conduct with a child´ in 1999. At the time of the conduct underlying his plea, Defendant was 17 years old and the victim 15. Following his plea, defendant registered as a sex offender, and in 2009 he was charged with failure to comply due to not having registered a change of address, which violated the statutory obligations of sex offenders. The Defendant moved to dismiss the resulting charge of failure to comply, arguing that he was under 18 at the time of the alleged offense and because the conduct was criminal only because of the age of the victim. The trial Court found, based on uncharged allegations in the probable cause affidavit, that Defendant¶s criminal conduct was non-consensual. The Vermont Supreme Court rejected the State¶s interpretation of the sex offender registration statute, and in doing so the Court looked at the ³plain meaning´ of the Statute²just as Mr. Bennett is doing in this case, in which he was charged with lewd and lascivious conduct( with a 19 year old female) not lewd or lascivious conduct with a child, which is required under Act 248. Of particular relevance to Mr. Bennett¶s case, the Court held that ³lack of consent´ is not an element of the crime of which Defendant was convicted. The Vermont Supreme Court specifically found that the trial court¶s reliance on the probable cause affidavit was improper:
Moreover, the State¶s proposed construction would convict defendant of a different crime, one that has not been charged or proven against him. The information stated that defendant
³willfully and lewdly commit[ed] a lewd and lascivious act upon the body of a child under the age of sixteen years . . . with the intent of gratifying his sexual desires.´ See 13 V.S.A. § 2602(a)(1) (³No person shall willfully and lewdly commit any lewd or lascivious act upon or with the body . . . of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child.´). Lack of consent is not an element of the crime with which defendant was charged and of which he was convicted following his nolo contendere plea. The trial court¶s attempt to bridge this gap by relying on the probable cause affidavit or any factual allegations or admissions underlying the charge of lewd or lascivious conduct with a child was improper and does not overcome the fact that defendant was convicted of a crime in which consent was irrelevant. The issue of consent cannot be revived to pull defendant into the registration requirement. (emphasis added) (Stamper, paragraph 5).
The Stamper issue is present in Mr. Bennett¶s case; the State is trying to bridge the gap between the offense Mr. Bennett was actually charged with: Lewd and Lascivious Conduct, (with the hopes of connecting that bridge through hearsay allegations in the probable cause affidavit) to sexual assault, assault, and it seems, possible other crimes as well. Stamper controls- Mr. Bennett was not charged with these other offenses, and they are not an element of lewd and lascivious conduct; the State¶s effort to bootstrap these uncharged crimes into a valid Act 248 order is a serious violation of due process for Mr. Bennett, as well as being in direct contradiction with legal precedent. Adding insult to injury, Officer Lambert¶s affidavit is pure hearsay. The State cannot ³pull´ Mr. Bennett into Act 248. In Mr. Bennett¶s case, the State has also written, ³The Court must also bear in mind that Act 248 commitments may also be made by petition«.´
Whether or not Act 248 commitments may also be made by petition is completely irrelevant to Mr. Bennett¶s case. In Mr. Bennett¶s case the Act 248 commitment arose from criminal charges, not a petition. In letter F, the State asserts: The Annual Review Process Assures Petitioner Due Process. The State goes on to say that the Act 248 Order has been renewed annually. However, what the State does not speak about is that not one of the Act 248 Orders were signed by either Mr. Bennett or his Guardian/ GAL; and to the best of the undersigned¶s knowledge, not once did a Court inquire, including and since 2006,on the record, of Mr. Bennett¶s agreement or that of Ms. Gilman¶s. This is in direct violation of VRFP 6.1. Although the Act 248 Order has been reviewed annually, that review does not legitimize the initial, tainted proceedings. Mr. Bennett¶s habeas petition is about illegal restraint and violation of due process. Repeating and duplicating the same mistake over and over, from 2006 until the current Order, does not ³cure´ that illegal restraint, and does not cure all the invalid orders that have flowed from it. The State's reliance on in re MB, 177 Vt. 481( 2004) is misplaced: In MB, there was an initial application for emergency treatment( which MB claimed was defective in his habeas petition). This initial emergency application was wholly independent from the subsequent State's application for involuntary treatment pursuant to 18 VSA 7508 ( d) (2). The Vermont Supreme Court wrote " MB's current confinement was authorized by Statute and more importantly uncontested"²further, MB conceded in oral argument that he was lawfully in custody at Vermont State Hospital based on the State's application for involuntary treatment, which MB had agreed to. So, in MB's case, even if the Court had
granted the habeas petition, it was a moot point, as his current confinement was legal. Mr. Bennett's case is different from MB: In Mr. Bennett's case, there has been, since the initial act 248 order, in essence one continuous act 248 order; in addition, unlike in re: MB, Mr. Bennett did not agree to Act 248 civil commitment. The initial Act 248 Order and Stipulation did not comply with the statutory scheme, as Mr. Bennett was not charged with lewd and lascivious conduct with a child. Mr. Bennett¶s current confinement is illegal. Neither Mr. Bennett or his mother Ms. Gilman, in her capacity as GAL or as guardian, have signed any stipulation, nor, as far as the undersigned can ascertain, have they participated on the record in any hearing. VRFP 6.1(d) (2). The final case the State cites against Mr. Bennett¶s habeas petition is State v ex rel. Anderson v U.S. Veterans Hospital, 268 Minn. 213, 128 N.W. 2d 710 (1964), for the misguided premise that ³the Annual review process assures petitioner of due process.´ Once again the State¶s reliance on case law is misplaced; the circumstances in Anderson are drastically different than those in Mr. Bennett¶s case. In Anderson, the petitioner was at liberty and no longer restrained.Anderson, 128 N.W. 2d 710 at 719. Thus, Anderson¶s habeas petition was at least in part rendered moot; the Minnesota Supreme Court remanded the issue of Mr. Anderson¶s confinement to the Probate Court, for proceedings to restore Anderson to capacity. Mr. Bennett¶s liberty is currently very much restrained, so his habeas petition is not moot. Also of great significance in Anderson: the Minnesota Supreme Court called for a Guardian ad Litem to file a petition for review in Probate Court (ibid at 719); thus underlining the importance of Guardian¶s ad Litem in commitment proceedings. The Court cited ³ in re: Wretland, 225 Minn. 554, 32 NW 2d 161: ³ Guardian ad litem is an essential factor in the defense of a committed person¶s interests.´ Ibid.
That ³essential factor´ has been marginalized, ignored and disregarded in Mr. Bennett¶s Act 248 case.
Conclusion: The Writ of Habeas Corpus has been called ³The Great Writ.´ The Habeas Corpus Act traces its ancient roots back three and a half centuries to 1679 England, and was adopted in response to abusive detention of a person without legal authority. The right to habeas corpus is set forth in the US and Vermont Constitution and that right continues up until this day. As the State concedes, fundamental to the writ is the notion that the person has been denied due process of law. Contrary to the State¶s Motion to Dismiss for Failure to State a Claim upon which relief may be granted, Mr. Bennett has most certainly stated a claim upon which relief can be granted: In Mr. Bennett¶s case he has clearly been denied due process of law, in that the Court had no authority under the Act 248 Statute to issues the original Stipulation and Order (and thus other orders) and the result has been a continued illegal restraint on his liberty. The State has 100% control over almost all aspects of his life: and the result is, that in his mid- 20¶s, Mr. Bennett is languishing in limbo, leading the isolated life of a both a monk and hermit; his biggest liberty (when he is not with his mother two days a week) is going to the local general or discount store; he has no social life, no circle of peers, no educational opportunities, and much of the time he has been held incommunicado. His life is a portrait of a restraint on liberty, and his restraint is illegal. In its response, the State barely brushes on the fact that Mr. Bennett was charged with lewd and lascivious conduct, instead of the lewd or lascivious
conduct required by Act 248; the State is dismissive of the fact that there was no direct, concrete Guardian ad Litem participation, and no such participation by Mr. Bennett; in an attempt to keep Mr. Bennett on Act 248, the State tries to impute against him hearsay allegations that were not an element of Lewd and Lascivious Conduct. If ever there has been a situation where someone has been denied due process of law, this is the situation. It is incomprehensible to the undersigned how the State could simply shrug off this serious denial of due process to Mr. Bennett, when he has been civilly committed by being charged with the wrong crime. And further, not only was he charged with the wrong crime²but he himself did not participate in Court proceedings²and neither did his guardian ad litem.
The undersigned believes that Mr. Bennett¶s plight is of first impression in Vermont, as there seem to be no other cases directly on point. If ever there was a case of an illegal restraint on liberty, it is the case of Mr. Bennett. In a habeas petition the State has the burden of showing that the restraint is lawful²and in this case the undersigned respectfully submits, the State has not met its burden.
Wherefore, William Bennett, by and through the undersigned counsel, respectfully requests that this Honorable Court deny the State¶s Motion to Dismiss for Failure to State a Claim upon which relief may be granted; that this Honorable Court find that deficiencies render the November 17, 2006 Findings and Order, and all subsequent Orders that have emanated from it, invalid, and that the Commissioner has no lawful authority to hold Mr. Bennett in custody; and that this Honorable Court immediately release Mr. Bennett from the
custody of the Commissioner, and vacate the Act 248 Proceedings in their entirety.
Respectfully submitted this 7th day of April, 2011 at Newport, Vermont
By:_______________________________________ Gertrude Miller, Attorney for William Bennett
Reply to State¶s Response to Petition for Writ of Habeas Corpus and State¶s Motion to Dismiss
Comes now William Bennett, by and through the undersigned counsel, and hereby files this reply to State¶s Response for Writ of Habeas Corpus and Motion to Dismiss, and respectfully replies as follows: The State¶s Legal Argument is divided into 6 sections, A, B, C, D, E, F, and for clarity¶s sake, this reply will address each section separately. A: The State asserts ³Civil Commitment Under Act 248 is not analogous to Imprisonment.´ The State cites Addington v Texas, 441 US 418, 428(1979)as follows: ³The US Supreme Court has noted that a civil commitment proceeding should not be constitutionally equated with a criminal proceeding because the state is not acting in a punitive manner«´
The State is mischaracterizing Addington; in actuality Addington, and the cases cited in it, support the premise that Mr. Bennett¶s confinement is unlawful. In Addingtonthe US Supreme Court spoke of an individual¶s due process protections in civil commitment proceedings, and the standard of proof in those proceedings. Civil commitment is not like criminal process, when it relates to standard of proof: A "clear and convincing" standard of proof is required by the Fourteenth Amendment in a civil proceeding brought under state law to commit an individual involuntarily for an indefinite period to a state mental hospital. Addington, 425-33. In Mr. Bennett¶s case, the Court did not make ³ clear and convincing´ findings. Addingtonheld: (a) The individual's liberty interest in the outcome of a civil commitment proceeding is of such weight and gravity, compared with the state's interests in providing care to its citizens who are unable, because of emotional disorders, to care for themselves and in protecting the community from the dangerous tendencies of some who are mentally ill, that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence. ibid 425-427. In Addington, the US Supreme Court recognized the individuals¶ liberty interest in a civil commitment: ³This Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. See, e. g., Jackson v. Indiana, 406 U.S. 715 (1972); Humphrey v. Cady, 405 U.S. 504 (1972); In re Gault, 387 U.S. 1 (1967); Specht v. Patterson, 386 U.S. 605 (1967).´
In Jackson, the US Supreme Court determined that the State violated an individual¶s due process when it civilly committed him for an indefinite amount of time solely on the basis of his incompetence to stand trial. Further, the US Supreme Court has held that the writ of habeas corpus applies in civil commitment proceedings: In Humphrey, the prisoner was held under Wisconsin¶s sex-crimes act, and the US Supreme Court reversed the lower Court¶s denial of the habeas petition. Spechtcites Baxstrom v Herold, 383 US 107: ³Commitment proceedings, whether denominated civil or criminal are subject to the Equal Protection Clause of the 14th amendment«´ Vermont case law also contradicts the State¶s premise that the writ of habeas corpus does not apply in Act 248 proceedings: ³The writ of habeas corpus can reach behind prison walls and iron bars, but it is not a static, narrow, formalistic remedy; its scope also includes the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty.´ In re Huard, ( 1965) 125 Vt. 189.
Vermont Title 12 Chapter 143, entitled ³ Habeas Corpus´ subsection 3951 states simply: Unlawful Restraint A person shall not be restrained or imprisoned unless under authority of law. In addition, the ³treatment´ provided Mr. Bennett under the Act 248 Orders is oppressive and actually more a restraint than that of someone on furlough status: Mr. Bennett is under constant 24 hour supervision, cannot leave his residence
without express permission and must be accompanied at all times ( eyeball supervision); his outings( when not with his mother) are usually limited: his world consists of trips to the local mom and pop general store, or a local discount store. Under Act 248, he has been denied access to use the phone, access to meetings with counsel, access to telephone calls to counsel, and access to contact with his family. In addition he is subject to arrest for ³elopement´ if he is not where his service providers decree he must be. Every one of his thoughts are monitored; on at least one occasion his room has been searched and his personal property illegally seized by a team of no less than four persons: one DAIL¶s representative as well as by three of his state authorized treatment providers, all acting in unison. Mr. Bennett asserts that Act 248 commitment is analogous to imprisonment. Mr. Bennett¶s Act 248 Civil Commitment, and the restraint which follows pursuant to the Court Order is strikingly similar to Jeremy Bentham¶s ³Panopticon Prison,´ where prisoners are observed without knowing they are being watched, and which in the year 1787, Bentham described as ³a new mode of obtaining power of mind over mind, in a quantity hitherto without example.´ The State also suggests that Mr. Bennett entered a stipulation with advice of counsel---this is untrue. A review of all the Act 248 Orders in Mr. Bennett¶s case reveals he did not sign anything whatsoever; the transcripts of the hearings( Exhibit A and B) indicate he was never questioned, and did not verbally participate. The State might make light of all these deficits but the undersigned cannot imagine a plea agreement without a defendant¶s signature and a verbal interaction with the Court; yet that is essentially what occurred in Mr. Bennett¶s case.
The US Supreme Court has addressed the issue of a silent record, as well as the Constitutionality of defendant¶s waiving their rights through counsel. In Boykin v Alabama, 395 US 238, a black man in Alabama pleaded guilty to five counts of armed robbery, and was sentenced to death. The Court made no inquiry as to whether his guilty plea was knowing and voluntarily. The US Supreme Court found it was plain error to accept the Defendant¶s guilty plea without determining first that it was knowing and voluntarily made, and the US Supreme Court reversed the conviction. The US Supreme Court wrote ³Presuming waiver from a silent record is impermissible.´ The Court then cited Carnely v Alabama, 369 US 506, 516, ³ the record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver«´ The Court also cited Douglas v Alabama, 380 US 415, 441: ³The question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards.´ In Mr. Bennett¶s case, Mr. Bennett had a right to due process under the US Constitution Fifth and Fourteenth Amendments- -to have ³ the opportunity to be heard´ which is referenced in VRFP 6.1(d) (2), prior to depriving Mr. Bennett of liberty. In 2006, Mr. Bennett¶s Counsel unilaterally waived that right to due process, to a hearing, for the opportunity to be heard. Mr. Bennett did not make a knowing, and voluntary waiver of his rights. He also did not personally enter an admission to the Merits. The transcripts are silent on his participation. That is the silent record referenced in Boyken: ³ Presuming waiver from a silent record is impossible´. Ibid There is another US Supreme Court on point: Johnson v Zerbst, 305 US 458, 1938. In Johnson ,the Defendant was convicted after trial. The Court reversed and
remanded the case because the Defendant did not competently and knowingly waive his right to counsel. In Mr. Bennett¶s case, since he did not participate in the proceedings, there was no knowing waiver of a hearing, or of his constitutional right to appeal, and no admission--a US Constitution fifth and fourteenth amendment as well as a Vermont Constitution article 4 violation. He was deprived of life and liberty without due process of law.
The State asserts in letter B, ³ Failure to State a Claim on which relief may be granted.´ The State portrays Mr. Bennett¶s habeas petition as some sort of collateral attack, and asserts that the Caledonia District Court had full authority to issue the Order. The State cites in re: M.A., 2011 Vt. 9 and 18 VSA subsection 8840. Unfortunately for the State¶s argument that the Court in Mr. Bennett¶s case had full authority to issue the Act 248 Order, the facts in ³ in re M.A.´ are very different than Mr. Bennett¶s case: the Defendant in M.A was charged with Lewd or Lascivious Conduct with a Child and Sexual Assault²and the victim in in re M.A. was 9 years old. Thus, in in re: M.A., the Court had subject matter jurisdiction and authority to issue the order under Act 248. In Mr. Bennett¶s case the alleged victim was 19 years old, and in Mr. Bennett¶s case he was not charged with lewd or lascivious conduct with a child, or sexual assault²which is required by the Act 248 statute; thus the Court lacked authority to issue the Order in Mr. Bennett¶s particular case. The State also contends that ³ a writ of habeas corpus is not available to cure technical defects«´ Mr. Bennett is not asserting mere technical defects: in his habeas petition he asserts serious denial of due process. In addition, the US Supreme Court has held that habeas relief applies in civil commitment proceedings; see Jackson v Indiana and Humphrey v Cady, supra. Thus, the
State¶s claim that Mr. Bennett fails to state a claim on which relief may be granted, is incorrect.
Letter C of the State¶s response is ³Petitioner is Collaterally Estopped from Raising Issues Necessarily and Essentially Determined in Previous Proceedings.´ The State¶s logic attempts to discard all habeas petitions(a right which is constitutionally guaranteed) and all Post Conviction Relief Proceedings. As far as the mother¶s /GAL Ms. Gilman¶s agreement with the outcome²there is absolutely no Court order in the record which contains Ms. Gilman¶s or Mr. Bennett¶s signature; in addition, there is no indication that Ms. Gilman or Mr. Bennett stipulated or agreed to anything, on the record in open court, be it on October 31, 2006, or November 17, 2006, the date the Act 248 Order was issued. In fact, a review of the transcript of November 17, 2006, does not even indicate that Ms. Gilman was present in the courtroom. Ms. Gilman was never asked her agreement/consent on the record, and neither was Mr. Bennett. The court simply cannot assume waiver from a silent record. This is the unconstitutional silent record which violated due process and resulted in reversal in Boyken v Alabama and Johnson v Erbst, supra. The undersigned has witnessed dozens of times when clients/defendants seem about to enter a plea in open court, and it appears this will occur right up until the last nano-second²and the client/defendant changes his/ her mind, and does not enter a plea. Employing the logic of the State, that same client would be guilty merely because the client was present in the courtroom, or merely because they were ³about´ to enter a plea of no contest or of guilty, or worse, because that client/defendant¶s attorney thought and stated on the record that the client was
guilty. The State¶s logic leads to a disturbing outcome: a return to the Star Chamber proceedings of medieval times.
The State contends in D: There was no requirement of Guardian or GAL participation. The State is incorrect: Vermont Rule of Family Procedure 6.1 provides for ³Representation by Attorney and Guardians Ad Liter in Specified Proceedings´ VRFP 6.1 (a) states that the rule applies to proceedings under 18 VSA 206 ( which is the Act 248 statute). Neither Mr. Bennett, nor his GAL Tracy Gilman (who was and still his legal guardian) participated in court proceedings on October 31, 2006 or November 17, 2006. The fact that Mr. Bennett and Ms. Gilman, both laypersons, were present in Court on October 31, and stood passively while counsel stipulated that Mr. Bennett was incompetent to stand trial, does not a knowing and voluntary stipulation make. Despite Attorney Willey¶s sincere and honest recollections, five years after the fact, of Mr. Bennett¶s and Ms. Gilman¶s ³consent´ to the Act 248 Order there is of course absolutely no way to predict what Mr. Bennett or Ms. Gilman would have said had they been asked on the record; or if they had been given the stipulation to sign there is no way to predict whether either of them would have signed it, and in addition Mr. Willey¶s recollections, however sincere, are speculative and hearsay. Obviously Ms. Gilman and Mr. Bennett were not invited to sign the Stipulation, so there are no conclusions that can be drawn as to consent. What we
do know from reading the Act 248 order, and reading the transcripts, is that neither Mr. Bennett nor Ms. Gilman made a knowing and voluntary waiver of Mr. Bennett¶s constitutional rights, and further, there was no finding by the Court that they had, and they were not advised of their right to appeal. The 2006 Order and Stipulation, and all subsequent Act 248 Orders in this case, are silent on whether: there is a factual and legal basis for the waiver or admission; that the attorney for the respondent has investigated the relevant facts and law and consulted with the respondent and guardian ad litem and that the guardian ad litem has spoken with the respondent; that the waiver or admission is being entered to knowingly and voluntarily by the respondent and also by the guardian ad litem, except as set forth in paragraph (3) ³ approval without respondent¶s consent´ ( please see VRFP 6.1 (d)(2). In Letter E, the State contends´ Petitioner¶s Conduct, not the State Attorney¶s Charging Decision, is Key to Determining Whether the Petitioner Presents a ³Danger of Harm´ to the Public. The State quotes from Corporal Gordon Lambert¶s affidavit in which he describes allegedly assaultive encounters; in one of which there are allegations of abrasions and cuts; there are allegations that Mr. Bennett attempted intercourse; allegations that Mr. Bennett attempted bodily injury( the State writes in its Response ³ serious bodily injury´²yet those words are not in Gordon Lambert¶s affidavit) by putting his hand around the alleged victim¶s neck. The common denominator here: uncharged heresay allegations in the probable cause affidavit. The case directly on point here is State v Stamper, 2011 Vt. 18( filed February 7, 2011). (Please note: at the time of writing Stamper¶s specific pages cites were unavailable).
In Stamper, the Vermont Supreme Court reversed the trial court¶s denial of Defendant¶s motion to dismiss for failure to comply with sex offender registration; the trial court had relied on uncharged allegations in the petition, just as the State attempts to do in Mr. Bennett¶s case. In Stamper, Defendant pled no contest to a charge of ³lewd or lascivious conduct with a child´ in 1999. At the time of the conduct underlying his plea, Defendant was 17 years old and the victim 15. Following his plea, defendant registered as a sex offender, and in 2009 he was charged with failure to comply due to not having registered a change of address, which violated the statutory obligations of sex offenders. The Defendant moved to dismiss the resulting charge of failure to comply, arguing that he was under 18 at the time of the alleged offense and because the conduct was criminal only because of the age of the victim. The trial Court found, based on uncharged allegations in the probable cause affidavit, that Defendant¶s criminal conduct was non-consensual. The Vermont Supreme Court rejected the State¶s interpretation of the sex offender registration statute, and in doing so the Court looked at the ³plain meaning´ of the Statute²just as Mr. Bennett is doing in this case, in which he was charged with lewd and lascivious conduct( with a 19 year old female) not lewd or lascivious conduct with a child, which is required under Act 248. Of particular relevance to Mr. Bennett¶s case, the Court held that ³lack of consent´ is not an element of the crime of which Defendant was convicted. The Vermont Supreme Court specifically found that the trial court¶s reliance on the probable cause affidavit was improper:
Moreover, the State¶s proposed construction would convict defendant of a different crime, one that has not been charged or proven against him. The information stated that defendant
³willfully and lewdly commit[ed] a lewd and lascivious act upon the body of a child under the age of sixteen years . . . with the intent of gratifying his sexual desires.´ See 13 V.S.A. § 2602(a)(1) (³No person shall willfully and lewdly commit any lewd or lascivious act upon or with the body . . . of a child under the age of 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child.´). Lack of consent is not an element of the crime with which defendant was charged and of which he was convicted following his nolo contendere plea. The trial court¶s attempt to bridge this gap by relying on the probable cause affidavit or any factual allegations or admissions underlying the charge of lewd or lascivious conduct with a child was improper and does not overcome the fact that defendant was convicted of a crime in which consent was irrelevant. The issue of consent cannot be revived to pull defendant into the registration requirement. (emphasis added) (Stamper, paragraph 5).
The Stamper issue is present in Mr. Bennett¶s case; the State is trying to bridge the gap between the offense Mr. Bennett was actually charged with: Lewd and Lascivious Conduct, (with the hopes of connecting that bridge through hearsay allegations in the probable cause affidavit) to sexual assault, assault, and it seems, possible other crimes as well. Stamper controls- Mr. Bennett was not charged with these other offenses, and they are not an element of lewd and lascivious conduct; the State¶s effort to bootstrap these uncharged crimes into a valid Act 248 order is a serious violation of due process for Mr. Bennett, as well as being in direct contradiction with legal precedent. Adding insult to injury, Officer Lambert¶s affidavit is pure hearsay. The State cannot ³pull´ Mr. Bennett into Act 248. In Mr. Bennett¶s case, the State has also written, ³The Court must also bear in mind that Act 248 commitments may also be made by petition«.´
Whether or not Act 248 commitments may also be made by petition is completely irrelevant to Mr. Bennett¶s case. In Mr. Bennett¶s case the Act 248 commitment arose from criminal charges, not a petition. In letter F, the State asserts: The Annual Review Process Assures Petitioner Due Process. The State goes on to say that the Act 248 Order has been renewed annually. However, what the State does not speak about is that not one of the Act 248 Orders were signed by either Mr. Bennett or his Guardian/ GAL; and to the best of the undersigned¶s knowledge, not once did a Court inquire, including and since 2006,on the record, of Mr. Bennett¶s agreement or that of Ms. Gilman¶s. This is in direct violation of VRFP 6.1. Although the Act 248 Order has been reviewed annually, that review does not legitimize the initial, tainted proceedings. Mr. Bennett¶s habeas petition is about illegal restraint and violation of due process. Repeating and duplicating the same mistake over and over, from 2006 until the current Order, does not ³cure´ that illegal restraint, and does not cure all the invalid orders that have flowed from it. The State's reliance on in re MB, 177 Vt. 481( 2004) is misplaced: In MB, there was an initial application for emergency treatment( which MB claimed was defective in his habeas petition). This initial emergency application was wholly independent from the subsequent State's application for involuntary treatment pursuant to 18 VSA 7508 ( d) (2). The Vermont Supreme Court wrote " MB's current confinement was authorized by Statute and more importantly uncontested"²further, MB conceded in oral argument that he was lawfully in custody at Vermont State Hospital based on the State's application for involuntary treatment, which MB had agreed to. So, in MB's case, even if the Court had
granted the habeas petition, it was a moot point, as his current confinement was legal. Mr. Bennett's case is different from MB: In Mr. Bennett's case, there has been, since the initial act 248 order, in essence one continuous act 248 order; in addition, unlike in re: MB, Mr. Bennett did not agree to Act 248 civil commitment. The initial Act 248 Order and Stipulation did not comply with the statutory scheme, as Mr. Bennett was not charged with lewd and lascivious conduct with a child. Mr. Bennett¶s current confinement is illegal. Neither Mr. Bennett or his mother Ms. Gilman, in her capacity as GAL or as guardian, have signed any stipulation, nor, as far as the undersigned can ascertain, have they participated on the record in any hearing. VRFP 6.1(d) (2). The final case the State cites against Mr. Bennett¶s habeas petition is State v ex rel. Anderson v U.S. Veterans Hospital, 268 Minn. 213, 128 N.W. 2d 710 (1964), for the misguided premise that ³the Annual review process assures petitioner of due process.´ Once again the State¶s reliance on case law is misplaced; the circumstances in Anderson are drastically different than those in Mr. Bennett¶s case. In Anderson, the petitioner was at liberty and no longer restrained.Anderson, 128 N.W. 2d 710 at 719. Thus, Anderson¶s habeas petition was at least in part rendered moot; the Minnesota Supreme Court remanded the issue of Mr. Anderson¶s confinement to the Probate Court, for proceedings to restore Anderson to capacity. Mr. Bennett¶s liberty is currently very much restrained, so his habeas petition is not moot. Also of great significance in Anderson: the Minnesota Supreme Court called for a Guardian ad Litem to file a petition for review in Probate Court (ibid at 719); thus underlining the importance of Guardian¶s ad Litem in commitment proceedings. The Court cited ³ in re: Wretland, 225 Minn. 554, 32 NW 2d 161: ³ Guardian ad litem is an essential factor in the defense of a committed person¶s interests.´ Ibid.
That ³essential factor´ has been marginalized, ignored and disregarded in Mr. Bennett¶s Act 248 case.
Conclusion: The Writ of Habeas Corpus has been called ³The Great Writ.´ The Habeas Corpus Act traces its ancient roots back three and a half centuries to 1679 England, and was adopted in response to abusive detention of a person without legal authority. The right to habeas corpus is set forth in the US and Vermont Constitution and that right continues up until this day. As the State concedes, fundamental to the writ is the notion that the person has been denied due process of law. Contrary to the State¶s Motion to Dismiss for Failure to State a Claim upon which relief may be granted, Mr. Bennett has most certainly stated a claim upon which relief can be granted: In Mr. Bennett¶s case he has clearly been denied due process of law, in that the Court had no authority under the Act 248 Statute to issues the original Stipulation and Order (and thus other orders) and the result has been a continued illegal restraint on his liberty. The State has 100% control over almost all aspects of his life: and the result is, that in his mid- 20¶s, Mr. Bennett is languishing in limbo, leading the isolated life of a both a monk and hermit; his biggest liberty (when he is not with his mother two days a week) is going to the local general or discount store; he has no social life, no circle of peers, no educational opportunities, and much of the time he has been held incommunicado. His life is a portrait of a restraint on liberty, and his restraint is illegal. In its response, the State barely brushes on the fact that Mr. Bennett was charged with lewd and lascivious conduct, instead of the lewd or lascivious
conduct required by Act 248; the State is dismissive of the fact that there was no direct, concrete Guardian ad Litem participation, and no such participation by Mr. Bennett; in an attempt to keep Mr. Bennett on Act 248, the State tries to impute against him hearsay allegations that were not an element of Lewd and Lascivious Conduct. If ever there has been a situation where someone has been denied due process of law, this is the situation. It is incomprehensible to the undersigned how the State could simply shrug off this serious denial of due process to Mr. Bennett, when he has been civilly committed by being charged with the wrong crime. And further, not only was he charged with the wrong crime²but he himself did not participate in Court proceedings²and neither did his guardian ad litem.
The undersigned believes that Mr. Bennett¶s plight is of first impression in Vermont, as there seem to be no other cases directly on point. If ever there was a case of an illegal restraint on liberty, it is the case of Mr. Bennett. In a habeas petition the State has the burden of showing that the restraint is lawful²and in this case the undersigned respectfully submits, the State has not met its burden.
Wherefore, William Bennett, by and through the undersigned counsel, respectfully requests that this Honorable Court deny the State¶s Motion to Dismiss for Failure to State a Claim upon which relief may be granted; that this Honorable Court find that deficiencies render the November 17, 2006 Findings and Order, and all subsequent Orders that have emanated from it, invalid, and that the Commissioner has no lawful authority to hold Mr. Bennett in custody; and that this Honorable Court immediately release Mr. Bennett from the
custody of the Commissioner, and vacate the Act 248 Proceedings in their entirety.
Respectfully submitted this 7th day of April, 2011 at Newport, Vermont
By:_______________________________________ Gertrude Miller, Attorney for William Bennett
