State of Vermont

Superior Court

Lamoille Unit
39-2-11 Lecv

Emergency Motion to Prohibit  Department of Aging and Independent

Living’s ( DAIL’S) interference with  William Bennett’s  right and access  to
counsel
 

Comes now the undersigned counsel, and hereby files this

Motion to Prohibit the Department of Aging and Independent
Living’s( DAIL’S) interference with William Bennett’s right and
access to counsel, and as grounds therefore states as follows to the
best of her knowledge and belief:
 

William Bennett is in custody of the Commissioner of DAIL, pursuant to Act 248.

Mr. Bennett has been called mentally retarded by the State of Vermont; and Mr.
Bennett has a learning disability.

The Act 248 case had been in Caledonia County, docket number 12- 12- 09 Camh-
act, however, it has been transferred to Lamoille County. (Please Note: As of filing
this Motion, on May 6, 2011, a Court furlough day, the undersigned is unsure of
the Lamoille County docket number; however, Mr. Bennett has also filed a Petition
for Writ of Habeas Corpus, in 39-2-11 Lecv; that Motion is still contested and is
pending a decision by the Court. The undersigned is filing this Motion in both 39-
2-11 Lecv,  and the Act 248 docket number.)

 
As of early March, 2011, DAIL has placed William Bennett at NKHS’s “Lowell
House” an alleged therapeutic group home, located at 419 Rickaby Road, Lowell,
Vermont.

 Mr. Bennett is unable to adequately communicate with counsel:

The Commissioner has apparently mandated that Mr. Bennett’s

phone conversations with counsel are no more than 5 minutes in
length; in addition there is no privacy for the  attorney/client
phone calls.

The events of May 5, 2011 are to the best of my recollection:

The afternoon of May 5, 2011, the undersigned spoke with Mr.

Bennett, and Lowell House staff could clearly be heard talking
in the background during the phone call; in addition the Lowell
House television was on. The staff voices and TV were very
disruptive. I asked Mr. Bennett if he could please speak to me
privately and he told me that  he was not allowed to. I then
asked to speak with Lowell House staff about this situation; I
heard Mr. Bennett asking staff to speak with his attorney, and
Lowell House staff refused to speak with me. I asked Mr.
Bennett to please go upstairs to his room so he could speak with
me privately; he was very hesitant and afraid of “getting in
trouble.” Mr. Bennett brought the phone up to his room to speak
with me, we had a brief conversation, and soon I could hear
Lowell house staff outside his door yelling at him. I asked Mr.
Bennett to tell them he needed to speak with me in private, and
he attempted to tell them that. He was told by an unknown voice
that he could not speak to me in his room, and that he had to
come back downstairs. I could clearly hear a commotion of sorts
in the background, and it was obvious to me that Lowell House
staff was making negative comments about  Mr. Bennett’s
conversation with me, which made Mr. Bennett understandably
very nervous and upset. It was impossible to have an attorney-
client conversation with him. At that time I ended the
conversation with Mr. Bennett. I called back shortly after and
once again there were voices in the background. I asked Mr.
Bennett to please tell the staff that he had a right to speak with
me, in private; and I reassured him that he has a right to private
phone calls with his attorney. He informed me that staff told him
that he was forbidden to close the door to his room while he
spoke with me. So, we proceeded to have a conversation with
the door to his room open- and thus anyone could be listening to
what he was saying to me. After several minutes I could hear
knocking sounds and a raised voice sternly telling Mr. Bennet
something to the effect of “time to get off the phone!” I asked
Mr. Bennett what was going on and he informed me that “They
are telling me I only have 5 minutes on the phone—I have to
hang up now.” We hurriedly said our goodbyes.

This situation is totally ludicrous and a complete denial of

Mr. Bennett’s right to counsel.  The lack of privacy and
rationed calls are an illegal restraint on his liberty. The
actions of DAIL, viz a  viz Northeast Kingdom Lowell House
staff, are foiling, confounding and disrupting the attorney
client relationship.
 The undersigned sees the Commissioner’s actions as an obstruction of justice, as
the Commissioner’s action stymie and interfere with Mr. Bennett’s communication
and access to  the undersigned counsel—as I am an officer of the court. Mr.
Bennett has been harassed and intimidated, and is afraid to speak with his own
attorney—for fear of breaking Act 248/ Lowell House “rules.”

  

My clients in prison are able to speak with me in private, and for

any amount of time that they wish, on the phone or in person;
thus my clients in jail have more rights than Mr. Bennett does
under Act 248. Mr. Bennett has a learning disability, which
already impacts his ability to communicate with counsel.  I
cannot have an intelligent, meaningful, conversation with him,
with staff in the background yelling, eavesdropping on Mr.
Bennett, interrupting our conversation, and watching television.
There is no reason for the Commissioner to not provide Mr. Bennett with his own
land line telephone—his Medicaid waiver monies(which are for his “care”
and  “treatment”)  were recently, on information and belief, around $96,000
per year, none of which, as far as I know, has ever gone into Mr. Bennett’s
pockets. I am certain that counsel for DAIL can speak with their client, the
Commissioner, in private, and with dignity and respect, behind closed doors if they
so wish, and their discussions are notrationed to hurried 5 minute phone calls and
further, that unknown people are not in the background yelling for them to end
their conversation and hustling them off the phone.

The attorney client relationship between Mr. Bennett and

the undersigned is worthy of the exact same level of privacy,
dignity, and respect, that the Commissioner enjoys with
DAIL’s legal counsel. How can the State call Mr. Bennett
both a criminal and mentally retarded, and then limit his
access to counsel?

 
Wherefore, the undersigned respectfully requests the following relief:
 

That this Honorable Court issue an emergency order immediately ordering

that  DAIL, and its agents, are prohibited from interfering with Mr. Bennett’s right
to counsel, which includes his attorney client relationship with the undersigned,
and from interfering with Mr. Bennett’s attorney client communications; and that
the order specifically spell out for DAIL and its agents that Mr. Bennett’s right to
counsel is un- rationed, confidential and private; and that DAIL provide Mr.
Bennett with  his own land- line telephone so that he may speak to counsel, in
private; and that this telephone, and the conversations made on it, may not be
monitored, eavesdropped upon, or rationed by DAIL or it agents in any fashion
whatsoever; and that DAIL and its agents may not harass Mr. Bennett for using
that phone; and that DAIL’s actions in interfering with access to counsel are  an
illegal restraint on Mr. Bennett’s liberty, and any other relief that is appropriate and
just.

Respectfully Submitted,

Dated at Newport, Vermont

This 6th day of May, 2011

By___________________________________________

Gertrude Miller, Attorney for William Bennett

 
 

Cc Kim Velk, Esq. for DAIL