The Burlington Free Press from Burlington, Vermont • Page 15

Ij? urliugt0tt Deaths 2B Money 8B Prosecutors Optimistic On Insanity Defense I 1 Friday. May 18, 1984 'i i' 'tf By DAVID KARVELAS The AssocKIted Press MONTPELIER Prosecutors are optimistic that Vermont's insanity defense law, which was declared unconstitutional by a Superior Court judge, will be upheld by the state's high court. Superior Court Judge Arthur ODea has granted an appeal allowing the Supreme Court to decide whether the new law is constitutional "We wouldn't be appealing unless we thought there was a reasonable basis for doing so," Robert Gagnon, chief of the criminal justice division of the state attorney general's office, said Thursday. "I feel the law would be upheld and we would get the decision reversed," At issue is a 1983 law that switched the burden of proof in insanity defense cases from prosecutors to defendants. ODea this month ruled in a murder case that the law was unconstitutional because it denied defendants their rights.

He said sanity was an essential element of a mur der and that it would be inappropriate for the Legislature to change the burden of proof without also stipulating that sanity was not an essential element. His ruling was made in the first-degree murder case of Clifford Messier, accused of shooting his wife's lover. Christopher Leopold, executive director of the State's Attorneys and Sheriff's Departments, said O'Dea made a mistake. "Our belief is there is not a constitutional infirmity," Leopold said. "I think Judge O'Dea is incorrect in his interpretation of both the Vermont case law and its applicability to the insanity defense." Leopold said at least a dozen states have similar laws that require defendants to prove they were insane at the time of a crime.

He said four of those laws have been challenged and upheld each time. "If you look at other states that have shifted the burden, they have essentially done the same thing we've done in Vermont they have not changed the basic el ements of intent crimes to reflect that," Leopold said. "The high courts in other states have ruled that it was constitutional to shift the burden." Vermont Defender General Andrew Crane, however, praised the judge's ruling against the law. "What Judge O'Dea was saying is that Vermont is different because in this state our Supreme Court has made it clear for many, many years that when raised as an issue, sanity is an element of the offense and therefore must be proven along with all the other elements of the offense," Crane said. "This is not the case in most other states." "If the Legislature had made it crystal clear that sanity was not an element of any offense, then quite possibly the result would have been different," Crane said.

State Sen. Mary Skinner, D-Washington, said she voted against the tougher law last year after hearing of Crane's concern. She said she also questioned whether it would be constitutional and did not feel there was a "demonstrated need" for the change. Montpelier Officials Still Sitting on Crumbling Wall By JOHN TAYLOR Frv Press Correspondent MONTPELIER A dispute over who is responsible for repairing a 120-foot retaining wall on Charles Street came before city voters this month but has yet to be resolved. City officials have refused to repair the stone wall, saying it is on private property.

Twice, sections of the wall have collapsed onto the street. The wall supports Fred Randlet's land. He says it is in the city's right of way. Regardless of ownership, Randlet says, the wall represents a threat to health and safety and he went to the voters to see if they felt the same way. This month, residents appropriated $100,000 for reconstruction of the wall.

City officials are undecided on what to do next. The vote was the latest event in the dispute that started in June 1982. At that time neighbor Ronald Camley reported water running from between the granite blocks in the wall. The flow continued on and off until September. Camley said he had the water tested and the results showed it was chlorinated, indicating it was city Turn to MONTPELIER, 5B FrM Pre 11 Photo by TERRY JOHN Sailing West The "Adirondack" begins the ferrying season Thursday on a perfect day for catching every reflection of Lake Cham- plain.

The ferry makes runs between Perkins Pier in downtown Burlington and Port Kent, N.Y. State: Brandon Program Proper By JOSEPH ZINGALE Free Press Correspondent MONTPELIER A state Mental Health Department investigation has determined that a program administered by the Brandon Training School never threatened the life of a 39-year-old mentally retarded male patient at the institution. The probe began after Brandon School nurse Theresa S. Hetzel filed an unfair labor practice complaint against the department. The complaint charged she was given a poor work review rating because she criticized the patient's self-feeding program.

The nurse claimed school officials deleted portions of her nursing notes when she refused to remove the negative comments she had made on the patient's program. Deputy Mental Health Commissioner Patricia Walton announced the findings Thursday. The investigation was conducted by the Community Mental Retardation Division staff headed by Dr. Ronald Melzer. Walton said the investigation included review of the patient's charts and records, and interviews with 21 staffers who were responsible for the patient's well-being during the time in question.

"His health and safety was never endangered by the self-feeding program," Walton sa.d. Last November, when she first began to record the negative observations in her notebook, Hetzel charged the man's physical condition could have become life-threatening. Walton acknowledged Thursday, "The patient's current physical condition is not good and he has been off the self-feeding program for some time because his medical needs have taken priority over his training needs." She said she believed the self-feeding program consisted of positive reinforcement when the man fed himself and negative reinforcement when he knocked his food over and refused to eat. She said the man suffered from numerous diseases including a muscle affliction which sometimes prevented him from feeding himself. Hetzel said on some occasions the patient was fed by an aide when he refused or couldn't feed himself, while on other occasions he did not eat at all if he would not feed himself.

Walton, however, said that the investigation revealed no meals were missed during the time the man was on the self-feeding program. She said the department will make changes at the Brandon Training School to clarify daily decision-making involving patients with serious medical needs. She said the investiga- Turn to STATE, 4B I YV 15 r- War Games May Come to Vt. By JIM CHENG Free Press Staff Writer The next war may be fought in the wilds of St. George.

If a Williston man has his way, average Americans armed with carbon dioxide-powered pistols will wage battle on a plot of forest land for $35 a day. Gary Howard is the strategist behind these plans for war games, a modern-day version of "Capture The Flag" for adults. If the town's Zoning Board of Adjustment grants permission at a Thursday hearing, he hopes to be in business by June 1. Howard has his eye on land owned by Robert Bruce on St George Lane just over the line from Williston. The land is zoned for agricultural and forest uses and a Howard's project needs a conditional use permit If approval is granted, Howard plans to offer the games on weekends from June to November.

The project would mark Vermont's entry into the National Survival Game, an adult recreation venture which began in Florida in 1981 and has spread to about 150 places nationwide, Howard said. His interest in the game comes from participating in the survival game near Newburgh, N.Y. "I was amazed to see such a cross-section of people playing the game. It was an interesting collection of people playing an interesting game," he said. Howard said he would have to limit participation to men and and women over 18 for insurance purposes, but he expects a similar cross-section of Vermonters.

"I've bad two reactions: there are a lot of people who are very excited about the game and those who have never thought about it There is some skepticism, but once people play, Turn to ST. GEORGE, 4B 3S7- Poll Shows Sanders Rating Dip t- 1 1 Free Press Photo by JYM WILSON Towering Work about 9 percent compared to 7 percent last fall, he said. Respondents' names were selected at random from telephone books. The political science students also Questioned residents about their views on local taxes and federal spending. Just over 74 percent said their local property taxes are "about right" the results show.

Another 19 percent said taxes are too high, and about 7 percent said they are too low. Residents were asked what new taxes they would favor if Burlington had to raise more tax revenue. A tax on video games was the most popular of the five options presented in the poll, favored by more than 65 percent of those polled. A local hotel and bar tax was favored by 57 percent followed by tax on new commercial and industrial development 45 percent a local sales tax, 28 percent and a local income tax, 20 percent "They're very much opposed to taxes that affect them directly," Rice said. Turn to POLL, 5B By DEBORAH SCHOCH Free Press Staff Writer Burlington Mayor Bernard Sanders won a 57 percent approval rating from city residents in a poll taken in late April Dy Uiuvenuiy 01 Veiiitom niuucuia.

That share is down slightly from the mayor's rating in a student poll conducted last fall. Even so, it is very high compared to the popularity of most politicians, said Tom W. Rice, an associate professor of political science who supervised the April telephone poll of 208 residents. Only 56 people, or 26.9 percent said they disapproved of the way Sanders is handling his job. Fully 118 people, or 56.7 percent said they approved; another 16.3 percent said they did not know.

Rice's students asked the same question when they polled 400 residents in November 1983. In the earlier poll 62 percent approved of Sanders' performance and 21 percent disapproved. The April rating was based on a smaller sample and different people, Rice said Thursday. The margin of error was Tom Parker, a welder for Quicksilver construction in Williston, rappels down the side of the Ethan Allen Tower in Burlington. It wasn't just for fun.

His job was to cut down the old staircase as part of the renovation of the 79-year-old tower. The oak stairs will be replaced with durable steel stairs. Other work planned is replacing the roof and parapet, adding a safety railing around the top, resurfacing and remortaring the tower and adding a drainage system. Through the efforts of Lana Jarvis, founder of Save the Tower roughly 1,000 contributors gave $50,000 in money, equipment and services to fix up the tower that has been closed to the public since 1974. The group hopes to reopen the tower by July 23.

The 46-foot-tall landmark had been erected in 1905 in the name of the hero of Ticonderoga on land he once owned. Vandalism and neglect forced its closing..