WORCESTER — The state Appeals Court could be asked to decide whether a prison superintendent is legally obligated to submit a medical parole plan as part of the recommendation on whether to grant medical parole to a terminally ill inmate under a new state law.
Judge James G. Reardon Jr. said he may report that question to the Appeals Court at the conclusion of a Worcester Superior Court hearing Thursday on convicted rapist Benjamin LaGuer's appeal of the denial of his petition for medical parole.
Mr. LaGuer, now 55, was sentenced to life imprisonment in 1984 after being convicted of beating and raping his 59-year-old Leominster neighbor in her home. He has maintained his innocence and has filed numerous unsuccessful appeals over the last three decades.
Mr. LaGuer has terminal liver cancer and doctors say he has only months to live. He filed a petition for medical parole in April under a new state law that took effect that month.
In June, Collette Goguen, superintendent of the North Central Correctional Institution in Gardner, forwarded the petition, along with a recommendation that it be denied, to state Department of Correction Commissioner Thomas A. Turco III. Mr. Turco denied the petition on June 26 and Mr. LaGuer appealed to the courts, alleging the denial was based on improper considerations.
Judge Reardon, who is hearing the case, issued an order Oct. 4 requiring Ms. Goguen to submit a medical parole plan "for immediate inclusion in the administrative record of this petition." The order stated that the superintendent could be found in contempt of court if the plan was not submitted by Oct. 10.
"The statute is unambiguous regarding the obligation of the superintendent to include a medical parole plan with the recommendation sent to the commissioner," Judge Reardon wrote.
While David J. Rentsch, a lawyer for the Department of Correction, had argued earlier that the responsibility for submitting the medical parole plan rested with the petitioner, and not the superintendent, Judge Reardon said he disagreed. Mr. LaGuer's lawyer, Jeffrey Harris, also contended it was the superintendent who was legally required to submit the plan under the law.
Mr. Rentsch, who has filed a motion asking Judge Reardon to reconsider his earlier ruling, told the judge Thursday that Ms. Goguen did not intend to comply with the Oct. 4 order. He said Mr. LaGuer had already submitted a medical parole plan, a plan that Mr. Harris said was more of a "housing plan."
If released, Mr. LaGuer plans to live in Danvers with a private citizen experienced in hospice care, according to his petition.
Although Mr. Turco did not find the plan submitted by Mr. LaGuer suitable, his petition for medical parole was not denied on that basis, but rather because of concerns that he still poses a danger to the public, according to Mr. Rentsch.
He also told the judge he would file an appeal on Ms. Goguen's behalf if she were to be found in contempt.
Judge Reardon commented that he could report the question concerning who has the responsibility to submit the medical parole plan to the Appeals Court or find Ms. Goguen in contempt and let her appeal to that court.
"I have some decisions to make," he told the lawyers as the hearing drew to a close.
A full hearing on Mr. LaGuer's appeal of the denial of his request for medical parole is scheduled for Nov. 20.