by Chris Braithwaite
copyright the Chronicle January 12, 2011
NEWPORT — George St. Francis was back in court Monday to hear two attorneys argue that the legal process that cost him his freedom 15 years ago was seriously flawed.
It was so flawed, attorney Gertrude Miller argued, that the court should drop the case that has been moving through Orleans Family Court since 2008. That would restore Mr. St. Francis’ full rights as a citizen and free him to pursue his life without the supervision of any guardian, public or private.
Ms. Miller filed her motion last year, and evidence was taken at a hearing in November. Monday’s three-hour court session was devoted to arguments on the motion.
Mr. St. Francis, now 33, had just turned 18 when he was found to be “in need of protection and supervision for his own welfare,” by a judge in Chittenden County. That led to the appointment of a public guardian, who enrolled him in the Safe Choices Program operated by Northeast Kingdom Human Services, the Newport-based community mental health service.
The program was designed to treat — and protect the public from — serious sex offenders who were so severely mentally disabled that they could not be tried or convicted in the criminal courts.
Mr. St. Francis does not clearly meet either of those criteria. He has never been charged with a serious sexual offense, and the claim that he suffers a severe mental disability has been challenged by his current attorney, Susan Davis, and two expert witnesses.
After a legal battle with the state, Mr. St. Francis won the right to leave the Safe Choices program in the spring of 2009.
However should Judge Walter Morris deny Ms. Miller’s motion to dismiss, he said Monday, he may find it necessary to appoint a new guardian for Mr. St. Francis, and impose some level of treatment and supervision.
Ms. Miller is in the case, not as an attorney for Mr. St. Francis, but for his private guardian, Janet Reed of Albany. Judge Morris has ruled that Ms. Reed is in contempt of court for allowing Mr. St. Francis to get married, move in with his new bride, and drop out of a court-approved treatment program. Ms. Reed was not in court Monday.
Ms. Miller cited three problems with the 1996 proceedings in Chittenden County.
While state law required that a state’s attorney initiate an action to put an adult under state supervision, she said, the action in Mr. St. Francis’ case was started by a private citizen, his foster mother.
There was no guardian ad litem appointed to protect Mr. St. Francis’ rights, Ms. Miller said. And the court’s ruling was based on a stipulation by lawyers on both sides, with no court hearing.
Ms. Davis, Mr. St. Francis’ lawyer, argued that her client never had a chance to challenge the proceedings in 1996.
“In this case, somebody stepped outside the box, and due process went down the drain,” she said.
Her client’s treatment, she added, “was the byproduct of the breakdown of an overloaded system. It happens — and it happened in this case.”
Ms. Miller argued that in 1996 Mr. St. Francis did not have the legal protections he was entitled to. “This was a group mistake, a group misunderstanding,” she said.
All the government and private agencies which once fought to keep Mr. St. Francis under their control have withdrawn from the case, and that has left Judge Morris in an uncomfortable position.
Ms. Miller and Ms. Davis work together on his behalf, as something of a legal tag team. If there are arguments to be made against them, they can only come from the judge himself.
On Monday he noted that it is not unusual, in mental health cases, for the judge to rule on the basis of a stipulation without taking evidence at a hearing.
However, Ms. Davis countered, in such cases the person whose liberty is at stake is represented by a guardian ad litem, a non-attorney appointed to make the sort of decisions a competent person might be expected to make in his own interest.
Mr. St. Francis didn’t have a guardian ad litem in 1996. He has one now, in the person of former County Clerk Connie Daigle, who has been present at all the hearings in his case.
Judge Morris also noted that there had been several proceedings in Probate and Family Court on Mr. St. Francis. In none of them, he said, had his attorneys challenged the original 1996 process.
If a procedural failure isn’t challenged at the first opportunity, the judge indicated, the opportunity to challenge it later may be lost.
And in every court proceeding, the judge noted, Mr. St. Francis was represented by an attorney.
Until 2008, however, Mr. St. Francis’ attorneys were chosen by his state-appointed guardian, who presumably picked a lawyer who would pursue what they felt was best for him. That was to remain under close, 24-hour, arm’s length supervision in a remote end-of-the-road house maintained in Lowell by Safe Choices.
When Mr. St. Francis finally found a lawyer who fought vigorously to get him out of Safe Choices and under the control of a private guardian, the state objected vigorously.
The lawyer was Tim Yarrow of Hyde Park. In a motion she filed in 2008, Jennifer Myka, a special assistant attorney general, referred to Mr. Yarrow as Mr. St. Francis’ “apparent” attorney.
The commissioner of the state Department of Disabilities, Aging, and Independent Living, she argued, had the exclusive power to obtain legal advice on his behalf.
Mr. Yarrow left the case after his client’s public guardian was replaced by Ms. Reed, a private guardian with a clear commitment to getting Mr. St. Francis out of the Safe Choices program.
Judge Morris said Monday that he will rule, in writing, on Ms. Miller’s motion to dismiss the proceedings. In case he should deny the motion, he asked the court clerk to schedule a two-day hearing on what, finally, the court might do about Ms. Reed’s contempt, and about the future of George St. Francis.