Safe Choices – introduction

This series looks at a privately operated but state funded program created to deal with people who have two strikes against them:  a court has judged them to be mentally retarded, and they have been accused of a sexual offense for which, because of their disability, they cannot constitutionally be brought to trial.  Our series, which began in October 2008, deals with “clients” who found the Safe Choices Program humiliating, confining, threatening and mentally abusive.  None of our subjects of articles within the numbered series quite fits the definition Safe Choices was created to serve.  They had never been formally charged with a serious sexual offense, but instead were suspected of sexual misbehavior and sent to Safe Choices by public or private guardians.
This series garnered a first place award for investigative reporting in the New England Newspaper and Press Association’s Annual Better Newspaper Contest in 2010.

The stories in the series appear here with numbered titles (starting with Safe Choices 1) in order of when they were written.

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Coventry man sentenced for knife attack

Christopher Smith enters court as Jennifer Hersey Cleveland, the woman he attacked in August 2011, looks on. Photograph by Joseph Gresser

by Joseph Gresser

copyright the Chronicle, 9-14-2012

Editor’s note:  This article is more recent than the Chronicle’s Safe Choices series published in 2010. The entire series is posted in the Safe Choices Program category from part one through 30 starting with part one.

NEWPORT — A Coventry man was sentenced to three to five years in jail — with all but just over a year of that suspended — for aggravated assault with a deadly weapon, a felony, and engaging in a prohibited act.  He was given credit for time served.

Cristopher Smith, 27, of Coventry, was arrested on August 8, 2011, after he threatened Jennifer Hersey Cleveland, a reporter for the Orleans County Record and a former Chronicle editor, with a knife.  He also ordered her to undress.  Ms. Cleveland had seen Mr. Smith hitchhiking with his dog in Coventry and offered him a lift.

When Mr. Smith pulled his knife on her, Ms. Cleveland grabbed his arm and broke the weapon before running from the car and seeking help at a nearby house.  Mr. Smith has been held without bail since his arrest.

Just after the initial sentencing hearing, Lawyer Gertrude Miller found herself in an unusual situation — forced to ask Judge Howard VanBenthuysen to extend her client’s time in jail.

After a three-hour-long hearing, during which Ms. Cleveland asked him to serve justice in “a merciful, therapeutic manner,” Judge VanBenthuysen agreed to the sentence worked out between Ms. Miller and Deputy Orleans County State’s Attorney James Lillicrap.  The hearing was held in the Orleans Criminal Division of Vermont Superior Court.

It called for a three-to-five-year sentence for Mr. Smith, all but 353 days of which were to be suspended.  In addition, the sentence included several pages of conditions including provisions that called for him to participate in a mental health treatment program, refrain from hitchhiking and not drive with female passengers unless given permission to do so by his probation officer.

The snag, discovered by probation officer Lisa Levesque, was that Mr. Smith’s sentence would have forced the state Department of Corrections (DOC) to release him immediately, even though his place in a treatment program will not be ready for up to six weeks.

The state and Mr. Smith’s lawyer agreed that he needs to be in a treatment program for some time to come.

After the discovery of the sentencing mishap, Judge VanBenthuysen quickly reconvened the hearing and with the agreement of all parties reset the period Mr. Smith must remain in jail to 395 days.  He agreed that, should the treatment facility be able to accommodate Mr. Smith sooner, he would readjust the sentence to allow him to enter the program.

The sentencing hearing was ostensibly called to allow Ms. Miller to contest two provisions of the sentencing agreement — that calling for Mr. Smith to refrain from giving women rides in his car, and that calling for him to participate in the therapy program.

In fact, Ms. Miller never discussed the first provision, and spent much time trying to influence the type of therapeutic program Mr. Smith is ordered to attend.

Despite frequent objections from Mr. Lillicrap, Ms. Miller spent an hour questioning a California psychiatrist, Dr. Robert Hochman, in a an attempt to elicit damaging testimony about Safe Choices, the residential treatment program where Mr. Smith lived for seven years before the attack on Ms. Cleveland.

Mr. Lillicrap argued that the questions were irrelevant because the plea agreement specifically stated that Mr. Smith would not be returned to Safe Choices without a judge’s order.

Judge VanBenthuysen wryly noted that Ms. Miller is a leading expert on Safe Choices, and has been involved in civil suits against the organization.  The Chronicle spent several years investigating the program and published a lengthy series of articles on its controversial practices (the series is published in its entirety elsewhere on this site.)  Ms. Cleveland also reported on the program for the Orleans County Record.

Dr. Hochman did criticize the program on the stand and in an affidavit submitted in advance of the hearing.

The affidavit says he interviewed Mr. Smith for one and a half hours and read 5,000 page of documents about his treatment.  His work led him to the conclusion that Mr. Smith suffers from high functioning autism, marked by “poor control of anger and disability in navigating adult social relationships…”  It also says he believes Mr. Smith was initially mislabeled as a sexual offender “based solely on several isolated episodes of faulty peer socialization that bore superficial resemblance to behavior that would be viewed by most as perverse if it occurred between sexually mature adults.”

It says that as a result of this initial mislabeling, he was put into a mandatory psychological program that “confined him to minimal participation in society as well as having him attend regular group sessions which appeared to use humiliation as a primary tool of behavior control.”

“Based on my review and my clinical experience, it is remarkable that in the months prior to the crime that put him in prison the following sequence of events took place:  a) after years of being chaperoned and needing to have any movies he rented approved by NEKHS [North East Kingdom Human Services] staff for limited sexual content, Mr. Smith succeeded in hacking the channel/ billing apparatus of a host family’s satellite TV system, and had free reign to watch “XXX channels” for five months until the host family discovered their monthly credit card bill had automatically been raised to pay for the XXX channels.  C) Several days after being banished from his new world of pornography/ fantasy, Mr. Smith committed the first actual sexual offense in his lifetime.  It is my observation that this was done in a hapless manner, noting an immediate subsequent suicide attempt was done in an equally hapless fashion.  It is mu further opinion that is is medically probable that there is a link between the phenomenon of pornography withdrawal and the commission of his crime, further noting that for years he was indoctrinated to view himself as a sexual deviant who was unable to fully function in society.”

He recommended that Mr. Smith be given therapy that would help him become part of a community and develop skills and interests that would enable him to participate in the outside world.

Gail Falk, the only other witness called by Ms. Miller, said she became Mr. Smith’s guardian seven years ago.  As head of Vermont’s Office of the Public Guardian, Ms. Falk met him when she went to Philadelphia to bring him back to Vermont after he grew too old for the school where he had been housed.

“I was overwhelmed by what a scary place that school was,” Ms. Falk recalled.  “I was glad to hear that it was later closed down by the state of Pennsylvania.”

Ms. Falk said the two of them bonded and she has remained Mr. Smith’s guardian although she no longer works for the state.  She said that she searched for a program that would enable Mr. Smith to nurture his abilities and help him to make friends and deal well with others.

She said that Mr. Smith has been in sex offender group therapy since he was 14.

“If it was going to be effective, it would have been,” Ms. Falk said.

Ms. Falk recommended that Mr. Smith be sent to Specialized Community Care, a small program that is willing to make space for him.

Judge VanBenthuysen said he appreciated the effort that Ms. Falk made to find the program, but pointed out that his ability to direct the DOC is limited that that agency would make the final decision about where Mr. Smith is sent for treatment.

Mr. Smith’s sentencing hearing began with a statement from Ms. Cleveland who read prepared remarks, stopping to hold back tears several times (see below).

Ms. Cleveland spoke directly to Mr. Smith, who did not look at her.  She told him that though she forgives him she wants him to know that his actions have had a major impact on her life.

Since the attack, Ms. Cleveland said, she has lost her sense of trust and said, “I can’t force myself to stop and help others in need — because of what you did.”

Although she is willing to recommend a sentence other than jail now, Ms. Cleveland told Mr. Smith that if he is again charged with a similar offense “expect to see my face in the courtroom, but in the future, I won’t be asking the court to be merciful.”

At the conclusion of the hearing Judge VanBenthuysen asked Mr. Smith if he cared to speak.  Mr. Smith rose and, without turning to face her, apologized to Ms. Cleveland.

“I know what I did was wrong,” he said.  “I’m really sorry for what I did.  I could never hurt anyone again.”

Mr. Smith asked the court for another chance.  He concluded by reading a poem he called “Puppet String.”

In it Mr. Smith described himself as a puppet and envisioned a day when he would break free of the strings that control him.

“One day I will pull loose my strings that holds my weight and stand on my own two feet/ and celebrate/and go where the world awaits.”

After Mr. Smith finished his statement Judge VanBenthuysen spoke first to Ms. Cleveland, praising the courage she showed in resisting her attacker and the compassion she showed in calling for mercy for him.

The judge said he sensed sincerity in Mr. Smith’s apology.  He told him that he wrestled with the question of whether or not to accept the proposed sentence agreement, but had been swayed by the fact that it was Mr. Smith’s first criminal offense and by Ms. Cleveland’s statement.

“This is a rehabilitative sentence,” Judge VanBenthuysen said.  He pointed out that the therapy recommended by Ms. Falk and Dr. Hochman is similar to that practiced by Safe Choices in that it is “intensively supervised.”

Should the court err in sentencing “any error in this case has to be in the safety of others,” Judge VanBenthuysen said.

Jennifer Cleveland’s statement:

 I want justice to be served, but in a merciful, therapeutic manner for Mr. Smith, which I believe the sentence in plea agreement accomplishes.

I forgive Cris, but I want you to know the impact of your actions in my life, because that’s something I can never forget.

It took me years to feel strong and self-sufficient, to get to the point where I’m not afraid to live my life — because by the plain fact of my birth as a female I’m a potential victim of sexual violence.

My husband now wants me to carry a weapon at all times and is worried every time I leave the house, worried I’ll again meet up with someone like you.

You destroyed my sense of trust.  I stopped that day to help you, and in return you put a knife in my face.  Now, I can’t force myself to stop and help others in need — because of what you did.

My job requires going into secluded, rural places at times to speak with people.  On one occasion, a man’s mother had just been crushed when her home caved in on her.  The man was in tears and reached out to me for some human comfort, and I couldn’t even give him a hug.  Because of what you did, I thought the man was trying to trick me to get close enough to hurt me.

Despite all of this, I’m giving my approval to what is a merciful sentence.  I don’t think jail is the place for you, but I certainly want you to get the help you need.

I hope you take this all very seriously and realize that not every woman would ask the court to treat you so kindly.  I hope you find a reputable program that actually seeks to treat people who have problems similar to your own.  It sickens me that you were placed in a program that encouraged you to behave this way and made you feel like you have no worth.  But it is time to move on and put in the time and effort necessary for you to get better.

If you are ever again charged with an offense like this, expect to see my face in the courtroom, but in the future I won’t be asking the court to be merciful.

contact Joseph Gresser at joseph@bartonchronicle.com

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Safe Choices 19 – St. Francis wants to take over his own life

by Chris Braithwaite

copyright the Chronicle June 23, 2010

NEWPORT — George St. Francis wants to get out from under the control of his guardian and take over his own life.

Meanwhile, he faces a court process that could severely limit the freedoms he currently enjoys.  He could be returned to the control of a state guardian and be subjected to 24-hour arm’s length supervision, something like a prison without walls.

Which way his life will go is up to Judge Walter Morris, who had been conducting a series of Family Court hearings into his case.

A motion seeking Mr. St. Francis’ emancipation as a competent adult has been filed by his attorney, Susan Davis.

If he were to grant the motion, Judge Morris would essentially end any state or court supervision of Mr. St. Francis.

And it would leave unresolved a question that clearly worries the judge, and other state and mental health practitioners who have dealt with him:  Is he a potential sex offender, and as such a threat to public safety?

As he sat on the bench Thursday, June 17, at the latest of a long series of hearings on Mr. St. Francis, Judge Morris faced two radically different views of the man.

His lawyer and his advocates, his wife and his friends, see him as a victim of a system that exaggerated both his disability and his potential to harm others.  As a result, they said, Mr. St. Francis spent 14 years in a system that confined him, humiliated him, over-medicated him with psychiatric drugs, and kept him far away from “normal” people and relationships.

On Thursday his lawyer, Susan Davis, went a step further and maintained that her client is not mentally retarded.  It was that diagnosis, accepted by a Superior Court judge in 1996, that cost Mr. St. Francis his freedom and put him in the hands of a program that tried to help him while, at the same time, protect the public from him.

On the other hand, Judge Morris must consider a file on Mr. St. Francis that runs to 1,100 pages, and apparently contains allegations and evaluations which raise the alarming possibility that, left to his own devices, he could become a sex offender.  Although the Chronicle has been granted limited access to the Family Court proceedings, which are normally held behind closed doors, the newspaper is not privy to the documents which support this view of Mr. St. Francis.

A year ago his problems seemed close to resolution.  Judge Morris’ predecessor in the case, Judge Robert Bent, had agreed that Mr. St. Francis should be released from the control of his state guardian.  She was replaced by Janet Reed of Albany, an advocate for Mr. St. Francis and a determined foe of the program, Safe Choices, that controlled his life for years.

Run by Northeast Kingdom Human Services, the local community mental health agency, Safe Choices was created to deal with sex offenders who are so mentally handicapped that, as a constitutional matter, they cannot be tried for their crimes.

Mr. St. Francis does not fit that description.  He is one of several men who were sent to Safe Choices because a guardian or family member was worried about their sexual behavior.

And far from being too mentally disabled to stand trial, Mr. St. Francis has on at least three occasions been the subject of minor criminal charges brought by his keepers in Safe Choices.

On the day she took over as Mr. St. Francis’ guardian, in late July last year, Ms. Reed permitted him to marry Kathy McCammon, a woman who, state officials have repeatedly asserted, abused him in 2003 by sleeping with him while serving as his caregiver.  That allegation has been investigated, but never proven, and both Ms. McCammon and Mr. St. Francis deny it.

Under a carefully negotiated court order, Mr. St. Francis was to be treated by Sterling Area Services, a mental health agency based in Morrisville, and to live under the close supervision of a couple in Northfield.

When Mr. St. Francis failed to keep an appointment with a Sterling therapist and moved in with his new wife, the agency terminated its treatment.

Judge Morris ruled in May that Ms. Reed violated the court order when she permitted her ward to marry and change his residence.  Among the possible consequences for her, the judge wrote, could be a finding of contempt of court.

Among the consequences for Mr. St. Francis, he said, could be a return to state guardianship.

But in court last week a spokesman for the state resisted that possibility.

Assistant Attorney General Jennifer Myka was there to represent the Department of Disabilities, Aging and Independent Living (DAIL), which oversees the state guardian system.

“It would be extremely difficult, if not impossible, for the department to take over Mr. St. Francis,” she told Judge Morris.

Given all that’s happened between the personalities involved, she said, “I just cannot see how we can interject ourselves in this… in a way that would be productive.”

Nor did Sterling Services show any appetite to resume treatment of Mr. St. Francis.  “Sterling doesn’t believe it can get involved at this time,” said its attorney, Robert Halpert.

The private guardianship has failed, Judge Morris said in obvious frustration.  “The question is, what are we going to do?”

If he ordered another risk assessment of Mr. St. Francis, the judge asked, “can the department be of any assistance?””

“Certainly, the department could arrange for another assessment,” Ms. Myka replied.

Mr. St. Francis’ attorney, Ms. Davis, tried to shape the nature of any further evaluation of Mr. St. Francis.

“It’s not the evaluation per se we’re concerned about,” she told the judge.  “The prior evaluation was based on tons and tons of records.  Many were exaggerated or false.”

A new evaluation should be done without reference to those records, she argued.

But without them, Judge Morris replied, “How could it be a competent evaluation?”

In the end, Judge Morris ordered a new assessment that would include a “psycho-sexual” evaluation.  He asked Ms. Myka to arrange for a specialist for the job, after consulting with Ms. Davis and Trudy Miller, the attorney for Ms. Reed.

Ms. Davis could obtain independent evaluations, he noted, and present those to the court.  She and Ms. Miller could also challenge the findings of the court-ordered evaluation, he added.

He set the next hearing on the matter for early August.

In the lengthy motion she filed to terminate the guardianship altogether, Ms. Davis wrote that “two separate and independent psychologists have determined George St. Francis to NOT be mentally retarded.”

Until September 2009, Ms. Davis said, the people in charge of Mr. St. Francis medicated him with Prozac, lithium carbonate, Topamax and Seroquel.  “He was taking ALL of these, concurrently, and has been for years,” she wrote.

“Side effects of these medications include drowsiness, dizziness, fatigue/insomnia, and headaches.  Side effects of the lithium include blackouts, seizures, slurred speech and confusion.  Side effects of Topamax include mental and physical slowing and delays, coordination problems, confusion, difficulty with concentration and attention.”

“Today,” Ms. Davis wrote, “clear of thought and medication, with a home, a wife, a life on the farm and the security that that brings, he no longer wants a guardianship of any kind.”

Though he has attended the hearings on his fate, Mr. St. Francis has never had an opportunity to testify.  On Thursday, waiting in the corridor for proceedings to start, Mr. St. Francis chatted with his guardian’s husband, Alan Reed, who seems to be a particular friend.

Mr. St. Francis, a large man with a quick smile and a keen sense of humor, sought detailed advice from Mr. Reed on how to deal with a tractor that had broken down on his wife’s farm.

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Safe Choices 20 – Judge insists on psychosexual evaluation

by Chris Braithwaite

copyright the Chronicle July 21, 2010

NEWPORT — At a hearing Monday in Orleans Family Court, Judge Walter Morris declined a formal request that he change his mind, and insisted that George St. Francis undergo a psycho-sexual evaluation.
In his efforts to win his freedom from court and state control, Mr. St. Francis faces official concerns that he is a potential sex offender.  Judge Morris ordered the psycho-sexual evaluation in June as part of a more general evaluation of Mr. St. Francis, who was judged to be retarded by a Superior Court judge in 1996, when he was 18.
His lawyer, Susan Davis, argues that Mr. St. Francis is neither dangerous nor retarded.  In the “motion for extraordinary relief” she filed with the court on July 13, Ms. Davis argued that the court lacked jurisdiction to subject her client to a procedure which she called “intimate, probing, distressing and invasive.”
However, referring to an evaluation of Mr. St. Francis that was conducted in October 2009, Judge Morris said “there is an evaluation that frankly says there is a high degree of risk.”
He added, however, that he believes the specialists who treat and measure sexual aberrations have dropped a particularly controversial piece of apparatus called the “penile plethysmograph.”  In case they haven’t, he added, he would order that the plethysmograph not be used on Mr. St. Francis.
The device was used to measure a man’s response to particular types of sexual stimuli.
In her motion, Ms. Davis said that “a psycho-sexual evaluation may include up to six hours of interrogation, forced viewing of sexually suggestive or violent materials, and in some cases linking the individual’s private parts to electronic probes to determine his or her response to sexual stimuli.”
One former client of the Safe Choices program, which imposed its treatment on Mr. St. Francis for years, told the Chronicle that he had been subjected to a plethysmograph test.
Judge Morris also declined to grant Ms. Davis’ request that he put a hold on the Family Court proceedings while she appealed his decision to the Vermont Supreme Court.
Monday’s hearing was a small part of a case that has been before Family Court for well over a year.
Mr. St. Francis was under the control of a state-appointed public guardian, and a reluctant client of the Safe Choices program when it began.
The court put him under the control of a private guardian, Janet Reed, who is a determined critic of the Safe Choices program and its methods.
But Judge Morris has ruled that Ms. Reed violated the court’s order when she permitted Mr. St. Francis to get married and move out of a Northfield home in which he was to be closely supervised.
The court is struggling with the question of what to do with Mr. St. Francis next.
Meanwhile, Ms. Davis is prepared to present evidence that her client, while not of average intelligence, does not meet the low standard required to deny him the freedoms of an ordinary citizen.
Testimony from expert witnesses for Mr. St. Francis is expected at a hearing in early August.
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