OK, so that there is no misunderstanding, what is discussed here should not be considered the cause/s of all sexual behavior, instead, what has been known and documented to have sometimes result in sexual behavior. Also, "sexual behavior" does not necessarily mean violations of law. What we are hoping is that defense lawyers (or defendants who should remind lawyers) will give consideration of what is shown here as possible defenses to charges of sex crimes, not to negate the conduct but to bring understanding to the court and mitigate punishment. ARTICLE-1: Emotions high during Misty Smith sentencing 1-24-2012 Vermont Female sex offender faces uncertain future ST ALBANS – Crying quietly, Misty Smith often took sips of water from her Styrofoam cup and grabbed at tissues as she sat before Judge Robert Mello at Franklin County District Court Monday morning. To her right was defense attorney Betsy Hibbitts, to her left, investigator Jean Heyer. Deputy State’s Attorney Diane Wheeler was joined by Cathy St. John of probation and parole, who had written the pre-sentence investigation report (PSI). There were concerns surrounding sentencing for the female sex offender – who pleaded guilty in August to two counts of sexual assault and two of unlawful restraint. Would she receive a straightforward three years to life sentence or a sentence to serve three years with the rest on probation? It seemed likely that either way, her time already served would be counted. Smith has been incarcerated for the 14 months since her Nov. 2010 arrest. To help Judge Mello make his decision, the opposing attorneys called on witnesses to provide information about Smith, her condition, and the case. St. John took the stand to explain that in preparation of the PSI, she had spoken with Smith and her victims (two pre-teen boys who were friends of Smith’s son); the young victim’s families, and others. Also taken into account was a report from psychiatrist William Nash. St. John said prison time would give Smith the opportunity to receive one-on-one sex offender treatment. She could also participate in a self-direction program to help with self-esteem issues and other personal problems. The Department of Corrections did not agree with Hibbitts’ request for a split sentence. It argued that it would be harder to supervise Smith on probation rather than on furlough release, which would be the outcome of a straight sentence. St. John said that studies had shown Smith was at a 78 percent chance of reoffending. It was made clear in court yesterday that while elements beyond Smith’s control may have shaped her life, the nature of her crimes were serious. Smith was arrested Nov. 9, 2010 after the parents of her young son’s two friends – each 11 years old at the time – did not return home after going to Smith’s residence to play video games. When questioned by a worried mother, Smith said the boys were not there. But they were. Smith had, according to court documents, locked the young boys in her son’s room. They had used a card to jimmy a locking device, and they were found when St. Albans Police later went looking for them. It was alleged that on various occasions for about a month or two, Smith had supplied the boys with marijuana and pills. Court papers explained that she bound their hands with duct tape and had sexual contact, short of intercourse with them. It was also alleged that she had taken inappropriate photos of herself with one of the boy’s camera, and had touched the boys inappropriately beneath a blanket. Smith’s husband was in the home, but not in the same room when these acts occurred, said police. Smith attempted suicide by ingesting pills after police rescued the boys. Smith has a prior charge of aggravated assault, as a result of which her child’s leg was broken. A victim herself Testimony during Tuesday’s sentencing showed that Smith had been a victim herself, and that she was found to have severe mental deficiencies. More specifically it was reported that she had been involved in abusive relationships, suffers from fetal alcohol syndrome and is borderline mentally retarded. Psychiatrist Nash took the stand as a witness for the defense.Smith’s father, Paul Talley, took the stand to provide further background on Smith’s life. He believed fetal alcohol syndrome was a reasonable explanation for his daughter’s deficiencies, and said that his ex-wife had kept his daughter from him during her childhood. Talley also stated he would be willing to act as a legal guardian for Smith, something he had done in the past, to keep track of her finances and life decisions. The defense and prosecution agreed that society had failed Smith in dealing with shortcomings. “That’s the tragedy of the situation,” said Nash, who likened the situation to closing the barn door after the horse has left. Still, the victims in the case had to be considered. Those victims’ mothers were present and spoke to the judge as well, with victim advocate Kelly Woodward at their side for support. Catherine (whose last name is withheld to protect her son), said she wanted Smith to get the help and structure she needs, but serving time was needed as well. “I want what she did to my son to mean more,” she said, her voice shaking with emotion. Christina, the second victim’s mother, said she couldn’t believe someone she had known could do this to her son. “I want closure,” she said. Hibbitts argued that a straight sentence was not the way to go, because the mentally impaired Smith would have to meet certain requirements to be eligible for furlough and parole. That would be difficult simply because of Smith’s deficiencies, Hibbitts claimed. “We’re taking a person who is very, very vulnerable, who has mental retardation and we’re subjecting them to the possibility of a life imprisonment for not being able to meet criteria that’s being evaluated by the Department of Corrections,” she said. Prosecutor Diane Wheeler did not share that opinion. Focus on victims “The state’s position is that the crimes she committed on two young boys who were her son’s friends, call for the most intense supervision,” Wheeler said the number of times she assaulted them and their ages warranted a to-serve sentence requiring the provisions of furlough rather than probation alone. Wheeler said Smith needed structure and supervision as offered by the Department of Corrections through furlough. “The state is also looking at the impact that this has had on the children,” Wheeler said. A life sentence was sought, she continued, “because these were little guys.” In the end Mello agreed with the state. He explained his position in great detail, going over the criteria considered in determining Smith’s fate. The serious nature of the crime involving sexual contact between Smith and two minor boys, as well as the fact that drugs were involved, played a role in his decision, he explained. Mello also considered Smith’s personal history, but determined that she presented a serious risk to the community and had a high likelihood of reoffending. Mello said she needed significant structure and treatment for the rest of her life. “The court thinks that the two victims came closest to articulating what is needed here,” Mello said. “What Ms. Smith needs is a structure that she’s never had in her life. They don’t want to see her spend her life in jail, but they realize in order for her to succeed, which they want her to do, she’s going to need very strict supervision; as much supervision as possible.” In total Smith received three years to life for the two sexual assault charges and three to five years for each count of unlawful restraint. Prior to any potential for release, Smith must serve the additional 18 months of the minimum sentence and then the requirements necessary for her to obtain furlough. A restitution hearing is scheduled for Feb. 1 to discuss the defendant repairing financial harm done to the victims, specifically copays for the victims’ counseling. END...... For now, have a great day and a better tomorrow. eAdvocate (BACK to the Top Page) |
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