A Legal Clash Highlights Vermont’s Struggle With Mentally Ill Lawbreakers 

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• Tim Newcomb

This month, Attorney General T.J. Donovan completed stage 1 of a task that Gov. Phil Scott assigned to him in June 2019. He filed murder charges against Louis Fortier in the fatal stabbing of fellow transient Richard Medina on Burlington's Church Street in 2017. 

The decision means Donovan now has reversed Chittenden County State's Attorney Sarah George's dismissal of charges in three cases — two murders and an attempted murder — in which she concluded that the state would not be able to rebut defense claims that the perpetrators were insane when they committed the crimes. Stage 2 will be completed when all three cases have been prosecuted to their conclusions.

The facts are not pleasant. Aita Gurung fatally attacked his wife and wounded his mother-in-law with a meat cleaver in 2017; Fortier attacked Medina in broad daylight in Burlington's main shopping and restaurant district by stabbing him several times in the neck; Veronica Lewis shot her firearms instructor, Darryl Montague, three times in 2015, leaving him disabled.

As horrific as these attacks are, there's a case to be made that Donovan should have left the prosecutorial judgment up to George, the prosecutor in the community where the crimes occurred. Yes, Scott and Donovan are public officials with a responsibility for public safety, and, yes, no politician wants to look soft on crime. But simply reversing George ducks a bigger issue — that Vermont lacks the legal framework and the right mental health facilities to respond adequately when a mentally ill person commits grievous violence.

Some states have a verdict in which people are determined to be "guilty but insane"; some have special secure housing for people deemed "criminally insane." Vermont has neither. George said in an interview she supports the latter measure.

"I think we definitely need a facility," she said, to house people who engage in criminal conduct because of mental illness.

Instead, Vermont has two distinct tracks. One is a criminal system in which people found guilty of serious offenses are given long prison sentences. That system is largely transparent; victims and the general public are allowed to know, for example, when an offender is due for release.

The other is a mental health system that is legally required to hold people in the least restrictive environment deemed suitable, and which is barred by health-privacy laws from saying when someone might be deemed well enough to be released into the community. The paradigm is completely different: People are sent to a mental health facility for treatment, not to serve a sentence.

By dismissing the cases, George effectively pushed the defendants into the mental health system and shone a spotlight on its inadequacies. She said she could not in good conscience prosecute three defendants whose insanity at the time of their attacks meant they should not be held legally responsible.

George announced the dismissals in June 2019, tweeting, "It is awful that our mental health agencies are failing us, but real leadership requires digging in and fixing problems, not pointing fingers elsewhere and undermining the judicial system's integrity." 

That outcome was not what Scott and, as it turned out, Donovan wanted.

Scott wrote to Donovan asking him to review the cases. The governor wrote he was "at a loss as to the logic or strategy behind the decision to drop all charges — especially considering the fact that the State's Attorney is aware the Department of Mental Health has no legal authority to continue to keep individuals hospitalized when they do not meet the legal criteria for hospital level of care." 

In other words, the laws governing the Department of Mental Health prevent it from pledging to keep the three offenders locked up for a long time. The dismissals also meant "there is no longer a possibility of supervision [by the Department of Corrections] or conditions of release to protect Vermonters," Scott continued. The governor added that "the top priority of government is public safety."

That sounds good, but there are other considerations, as well.

First, George was right to try to light a fire under state leaders about fixing the mental health system. Vermont has struggled with this for decades, and mental health care was torn asunder when the Vermont State Hospital in Waterbury was forced to close due to flooding from Tropical Storm Irene in 2011. The policy of "deinstitutionalization," under which people with mental illness were released into the community, has resulted around the country in prisons becoming de facto mental health facilities.

Second, a prosecutor is supposed to follow the law. George concluded that the evidence showed the three defendants were too mentally ill to be held responsible for the mayhem they inflicted, and therefore they couldn't be put on trial. "My decisions are guided and have to be guided by my ethical obligations, or I'll lose my law license," George told Fair Game.

For four years, president Donald Trump pushed the U.S. Department of Justice to bend the law to the breaking point. What a refreshing thing it would be to see an attorney general in Vermont tell a chief executive: "We're not going to do that here."

Third, there's something to be said for our elected officials getting along with one another. Both Donovan and George are Democrats; Donovan hired George as his deputy when he was Chittenden County's state's attorney. George has not tried to hide the pain of the insult she felt when he reversed her decisions. "I thought T.J. would have a lot more respect for my prosecutorial discretion, my ethical decision making and my being an independent elected official — and as someone who's known me for 15 years," she said.

Finally, speaking of prosecutorial discretion, George said she hasn't publicly second-guessed Donovan when he has used that discretion in police use-of-force cases to determine whether an officer acted reasonably or should be charged with a crime.

Will Vermont begin to close the gap that seems to have grown between its mental health and corrections systems? The Senate last year passed, and the House Judiciary Committee this week is set to take up, a bill that would establish greater transparency in the mental health system. It would allow the Department of Mental Health to share information more easily with prosecutors. It sounds to these ears like an insufficiently bold reform.

A trial that involves an insanity defense comes in two stages: The jury is asked whether the state has proven that it has accused the right person and that a crime occurred in the way alleged. If the answer is yes, it is then up to the defense to convince the jury that the defendant was insane — and therefore not responsible.

Use of the insanity defense is rare, and success with it all but unheard of. That's because juries often are still reeling with the hideous facts of the crimes: They've been shown the bloody meat cleaver or the photos of the man lying on the pavement with blood pooled around him. They've heard the outrage in the prosecutor's voice and words like those Donovan offered in an interview the other day about Gurung's victim, Yogeswari Khadka: "She came to this country to escape violence and be protected by our laws, and she was hacked to death on Hyde Street."

George said that, "regardless of the insanity defense, there's no jury that is not going to convict them, based solely on emotion."

The heavy betting is that the state will "win" these convictions. In February, in fact, Lewis pleaded guilty in state court to second-degree attempted murder. In a plea agreement, she received 10 years in prison and 40 years of state supervision with special conditions, including mental health treatment. Fortier and Gurung are still awaiting trial.

"[Lewis] likely faced a choice between the lesser of two evils," George wrote in an email to Seven Days at the time of Lewis' plea. "This is exactly how our system typically plays out. We put the entire weight of the government on someone's back and hope they eventually cave."

After these cases conclude, Vermont may wait a few decades before trying to close the chasm between its mental health and criminal justice systems, into which too many of these broken souls fall. And when the cases are over and the state chalks up its wins, I, for one, will forgive you if I overhear you singing Bob Dylan's bitter lament in "Hurricane": "Couldn't help but make me feel ashamed to live in a land / Where justice is a game."

Hypocrisy Alert

Here's something that appeared on the Vermont Democratic Party's Facebook page last Friday:

"Gov. Phil Scott was 'caught by surprise' by the news that today Vermont broke its record for the highest ever one-day total of new Covid-19 cases: 251 ... [Editor's note: The state later revised this figure to 255.] Two weeks ago, Phil Scott loosened Vermont's Covid-19 restrictions, allowing two unvaccinated multi-family households to gather and a loosening of table seating requirements in restaurants. Up next: a reopening of bars this Wednesday. Coincidence? You decide."

While you're deciding that, you may also want to think about Burlington Mayor Miro Weinberger's announcement last week that he would allow the city's bars to open, just as others in the state can, and will not opt out.

Weinberger, of course, is a Democrat. Somehow, that seems to make him less of a target for the party's finger-wagging.