NEWPORT CITY – Judge Howard VanBenthuysen granted a Motion to Quash by Northeast Kingdom Human Services (NEKHS) in State v. Cristopher Smith yesterday. The order stopped attorney Trudy Miller from obtaining any additional mental health records of Smith, who is her client.
Smith pleaded guilty in July to a charge of aggravated assault with a deadly weapon and a charge of engaging in a prohibited act by pulling a knife on Jennifer Hersey Cleveland and demanding that she take her clothes off while Smith was hitching a ride from her in August of 2011. Although shaken up, Cleveland was not physically harmed in the incident.
Smith allegedly has developmental disabilities, but he was found competent to stand trial.
Smith is a client of the Resolutions Program (Safe Choices) run by Saul Schoenberg, a psychologist, who contracts with Northeast Kingdom Human Services. The program is supposed to provide counseling services to individuals with developmental disabilities and a history of sexually inappropriate behavior, although many clients have never been charged or convicted of a sex-related crime. The client enters the program and must attend counseling sessions. They are also prohibited from many social and family contacts and may be ordered to reside in a group home. Most, not all, are under the guardianship of the State of Vermont. The program is on-going, that is, there is no specific end to the term of treatment and many clients have been in the program for years.
The cost of the program is usually covered by Medicaid. One of the sets of records Miller was seeking were the Medicaid payments, which she said would establish the dates services were provided where it was difficult for her to isolate that information from the documents she had already received.
Miller, who is trying to document exactly when her client received counseling services, said that NEKHS had provided her with several thousand pages of records, which were mixed together in a “state of complete chaos, sloppiness and jumble,” according to her written opposition to the NEKHS Motion to Quash. There was no inventory, no order, no checklist, no cataloguing and no chronology, she argued. Finding what she needed - a comprehensive list of the services her client had received - was like finding a needle in a haystack.
Miller also stated that her client and others in the program were "easily influenced" and that Smith may have been goaded by a therapist to commit an assault.
Whitman Smith, attorney for NEKHS, was also on hand to represent Schoenberg Tuesday. Smith said Miller has all of Cristopher Smith’s information with the exception of some older files that were destroyed during a boiler malfunction.
During a telephone interview late Tuesday, Smith explained that any medical/clinical record is broken up into sections and not chronological. Smith said that Miller asked for all records since her client’s birth in 1984 and the bulk of the information is not in electronic format.
In the end, VanBenthuysen didn’t agree with Miller’s argument and granted the Motion to Quash, effectively ending her attempts to obtain the records she wanted.
VanBenthuysen also granted a protective order at Smith’s request, stating that Miller can’t serve any additional subpoenas in this case without making a motion with the court. Miller had served several subpoenas in the case.
“Last toll, I think there were at least three of those,” said Smith. “Ms. Miller has the right to subpoena people; all we’re saying is she kind of went excessively on this one. Any future subpoenas should be reviewed and approved by the court before they’re issued.”
VanBenthuysen denied the state’s request for a delay of Smith’s sentencing hearing. As of Tuesday, a presentence investigation has not been written yet. The hearing is scheduled for Thursday, Sept. 13.
Miller said she has an expert witness coming to Newport from California for the sentencing hearing.
This is not Miller's first time battling with NEKHS and Saul Schoenberg. She has represented other clients who have sought to be removed from the program or who are attempting to re-enter society or re-connect with family members.