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 “Civil Commitment Under Act 248 is not analogous to
Imprisonment.” The State cites Addington v Texas, 441 US 418, 428(1979)as
follows: “The 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
Addington the 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 “ clear and
convincing” findings. 

Addington held: (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:  “This 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. Specht cites Baxstrom v Herold, 383 US 107: “Commitment 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: “The 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 “ Habeas Corpus” subsection 3951

states simply:

Unlawful Restraint

A person shall not be restrained or imprisoned unless under authority of law.

          In addition, the “treatment” 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 “elopement” 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 “Panopticon Prison,”
where prisoners are observed without knowing they are being watched, and which
in the year 1787, Bentham described as “a 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  “Presuming waiver from a silent
record is impermissible.” The Court then cited Carnely v Alabama, 369 US 506,
516, “ 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: “The 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 “ 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:

“ 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, “ 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 “ 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 Assault—and 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 assault—which 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 “ 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 “Petitioner 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 outcome—there 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-second—and 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 “about” 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
“Representation 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 “consent” 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) “ 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 “Danger 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 “ serious bodily injury”—yet 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 “lewd 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 “plain
meaning” of the Statute—just 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 “lack 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
“willfully 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) (“No 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 “pull” Mr. Bennett into Act 248.

          In Mr. Bennett’s case, the State has also written, “The 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 “cure” 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"—further, 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 “the 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 “ in re:
Wretland, 225 Minn. 554, 32 NW 2d 161: “ Guardian ad litem is an essential factor
in the defense of a committed person’s interests.” Ibid.
That “essential factor” has been marginalized, ignored and disregarded in Mr.
Bennett’s Act 248 case.

Conclusion: The Writ of Habeas Corpus has been called “The 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 crime—but he himself did not
participate in Court proceedings—and 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 lawful—and
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