Prosecutor Sarah George speaks during a trial in May. File photo by Glenn Russell/VTDigger
BURLINGTON — After charges were dropped against suspects in two separate murder cases and an attempted murder case this week, top Burlington and Vermont officials are raising questions about potential public safety risks.
But Chittenden County State’s Attorney Sarah George defends the move, saying that dismissing the cases, in all three of which the suspects were mounting defenses based on mental health, is “as close to justice as we can get.”
George announced Tuesday that the state was dismissing charges against Louis Fortier, charged with a murder on Church Street in Burlington in March 2017; Aita Gurung, charged for murdering his wife in October 2017 with a meat cleaver in Burlington; and Veronica Lewis, charged with attempted murder for shooting her firearms instructor in 2015 in Westford.
Each defendant had been found to have been insane at the time of their alleged crimes by psychiatrists, and each had a long history of mental illness diagnoses and previous psychiatric hospitalizations.
“I think that for individuals whose conduct is solely the product of a mental illness, an outcome like this is as close to justice as we can get and certainly as close to justice as we can hope for,” George said. “That being said, it’s very clear to me that for these victims that does not feel like justice.”
George’s controversial move to drop the high profile cases has been questioned by Gov. Phil Scott, who asked Attorney General T.J. Donovan to review the decision and said he was “at a loss as to the logic or strategy” of the decision.
Fortier, Gurung and Lewis are in the custody of the Department of Mental Health. But George said she has no indication from the department on how long the three will remain in treatment before their release.
“Probably the biggest frustration for me is not knowing, not being able to tell these families anything about how long they’ll be unable to be on the streets and in their community,” she said.
Bourgoin factor
George said the state reached the conclusion that it did not have enough evidence to rebut the insanity defense in all three cases around the same time, months before the start of the trial of Steven Bourgoin.
Bourgoin was found guilty last month of killing five teenagers in a wrong-way collision in 2016, and is awaiting sentencing. Bourgoin attempted to use the insanity defense, but the jury rejected the defense.
“All three sort of came to the insanity head around the same time, within a couple months of each other, which just happened to be the case,” she said. “By the time it was pretty apparent we weren’t going to be able to go to trial in the cases, it was really right before we were prepared to go to trial in Steven Bourgoin.”
George said she knew the announcement of the dismissal of the cases would receive substantial media attention, and she decided to wait until after the Bourgoin trial to avoid affecting the juror pool in that trial.
For example, a potential juror could have seen the decision to dismiss the other three cases but not the Bourgoin case as unfair on behalf of the state. That could make them more likely to rule in Bourgoin’s favor, George said.
Or a potential juror could have interpreted the state’s decision to dismiss the other three cases but not Bourgoin’s as a sign the state isn’t afraid to dismiss cases when insanity defenses are justified and been more likely to rule against Bourgoin, George said.
“I didn’t know if it would help the state or hurt the state, it could have helped the defendant or hurt the defendant,” she said. “I didn’t know, but it was not something I wanted to risk for either party.”
Robert Katims, Bourgoin’s attorney, said Thursday he didn’t have any comment to George’s decision regarding the timing of the announcement the dismissals of the other cases.
“I hope and trust that she would make any decision with regard to any individual case solely on the merits of the case,” he added.
In the Bourgoin trial, an expert hired by the defense, as well as an expert initially retained by the state, concluded that Bourgoin was insane at the time of the crash.
To rebut the testimony of those two experts for the defense during the trial, George called an expert to testify who examined Bourgoin closer to the time of the crash than the two defense experts. That expert who testified for the prosecution concluded that Bourgoin was not insane at the time of the offense.
George said that her office had determined that Fortier, Gurung and Lewis were able to meet their burden to prove insanity, while Bourgoin was not.
“My opinion is that the Steven Bourgoin case, and the defense presented by Steven Bourgoin is not valid,” she said. “In these three cases, I felt that the evidence overwhelmingly supported the defense’s argument.”
Bourgoin did not have a history of mental illness unlike the three defendants in the recently-dismissed cases, George said. The state also had the expert witness who found Bourgoin was sane at the time of his offense, which was not the case for Fortier, Gurung or Lewis.
“We don’t have a forensic psychiatrist who found, or opined, that these three individuals were sane at the time,” George said. “And it’s my belief as an officer of the court and in my ethical obligations as a prosecutor, I can not go to trial on a case I know we do not have expert testimony to rebut the defense.”
In the Gurung and Lewis cases, the state hired experts to attempt to rebut the insanity defense after defense experts ruled both were insane at the time of the attacks. But the experts hired by the state also found that both individuals were, in fact, insane.
In the Fortier case, George said she asked the neutral court-appointment expert witness to do additional work to ensure that Fortier was insane at the time of the attack. The doctor returned with the same conclusion.
Fortier, Gurung and Lewis were all represented by public defenders, and George said their attorneys understood and agreed with George’s decision to wait until after the Bourgoin trial to dismiss the cases, especially since waiting would not affect the treatment their clients are receiving.
Mental health and prosecution
For an insanity defense, defendants need to prove that they suffered from a “mental disease or defect” at the time of the alleged offense and were either “unable to appreciate the criminality of [their] conduct” or “unable to conform [their] conduct to the requirements of the law.”
Sarah Squirrell is the Commissioner of the Vermont Department of Mental Health. File photo by Mike Dougherty/VTDigger
George said the state dismisses cases where the insanity defense has been raised approximately once or twice a month. She said she was unsure if there had been an increase in defendants with mental health issues.
“I think there’s either more of them occurring, or we’re just looking at them differently and recognizing that these issues are occurring because of underlying mental health issue,” she said. “I think there’s more spotlight on that, and I think it’s good.”
Far too often, George said, society has depended on the criminal justice system to address the behavior of those with mental illness, which does not work.
“For me as a prosecutor, the Department of Mental Health being accountable to the community for an individual who committed a crime due to their major mental illness is justice,” she said. “That is how this should work.”
George has heard from victims and family members involved in these cases who are disappointed with the dismissals. She said she understands that the victims and their families have to live with the pain caused by the involved perpetrators.
“It’s very clear to me that for these victims, that does not feel like justice,” she said. “I understand that, I hear that and I absolutely respect that.”
Department of Mental Health role
George said it would be easier for the surviving victims and the families if she could provide them more concrete information about what the next steps are for the perpetrators.
“It’s incredibly hard for me, not just as a prosecutor, but as a elected official, not being able to provide those answers and having to give up that sense of control over these cases and put it in the hands of an agency that I can really only hope takes over that same sense of responsibility to the community,” she said.
When she reached out to the Department of Mental Health to ask them if they could notify Darryl Montague, the man Lewis shot, if she were about to be released, the department told her that it was not their policy to do so.
George said she was unsatisfied by that response.
“I totally understand not being able to tell victims about health records or treatment decisions,” she said. “But whether or not the individual is being released, and where they are being released to, I think they should absolutely have to do that.”
But the Department of Mental Health is prohibited under the federal health care privacy law HIPPA from disclosing any patient information to anyone without the patient’s permission, with only limited exemptions, according to Sarah Squirrell, the commissioner of the Department of Mental Health.
This means the public will not be notified when Fortier, Gurung and Lewis are released. There is a special provision, added in 2017, under HIPPA which allows mental health care providers to provide “reasonable care” to protect an identifiable victim if they determine their patient poses a serious risk.
This could include notifying law enforcement about the risk, Squirrell said.
The Department of Mental Health’s mandate is to care for the mental health needs of Vermonters, Squirrell said, not act as a law enforcement entity.
“We provide care and treatment of mental illness as a health care provider and a payer of health care services,” she said. “We are not a state entity that administers or enforces criminal justice. We aren’t an arm of law enforcement and we’re not designed, nor do we have the tools, to ensure high levels of public safety.”
The treatment individuals receive, length of that treatment and location of that treatment is based on the individual’s mental health treatment needs, Squirrell said.
“It’s our responsibility to provide that level of treatment and care and then discharge to the appropriate, next least restrictive level of care once we’ve addressed their acute mental illness,” Squirrell said.
There are a number of levels of care that are a step down from the inpatient psychiatric unit, Squirrell said — a secure locked residential facility, intensive residential facilities and group homes.
“There is always the possibility that, based on their treatment needs and assessment by the treatment team, that they could be released to the community,” she said. “But that’s a clinical decision based on their mental health needs.”
Under HIPPA, Squirrell said she can not speak to any specific individuals, even to confirm they remain under the care and custody of the department.
Public safety?
Phil Scott at a press conference in May. File photo by Mike Dougherty/VTDigger
For the governor, the decision to dismiss the cases raises concerns about public safety, which he expressed in a letter to Donovan.
“The top priority of government is public safety, and I certainly don’t take this obligation lightly. A civil society cannot function properly when a heinous violent crime is not properly adjudicated, and the public is put at risk,” Scott wrote.
The Department of Mental Health does not have the legal authority to keep individuals hospitalized after they meet the legal criteria for hospital level of care, Scott wrote. With the dismissal of the cases, the Department of Corrections does not have the authority to supervise the individuals, and there are no conditions of release.
Tom Anderson, the commissioner of the Department of Public Safety, said the department would not receive notification when Fortier, Gurung and Lewis are released. He said public concerns about safety following the dismissal of the cases were “legitimate.”
“That does give us some concern, that we wouldn’t really have any knowledge of when they were getting out or what their propensity for violence would be at that point,” Anderson said. “All of them were pretty serious, pretty violent crimes.”
Anderson said he thought Scott’s request to Donovan was the best first step, and that he hadn’t yet explored other options to ensure public safety following the dismissals.
“I’m not sure there are any other options available,” he said. “The option of the governor asking the attorney general to make an independent review of it is a sound one.”
Anderson said didn’t have enough information to opine on George’s decision but said it was “unprecedented.”
“I don’t remember anything quite like this ever happening where someone’s dismissed this number of violent cases at one time,” he said. “So I think it’s certainly worth having someone else take a look at it.”
Jack McCullough, the director of the Mental Health Law Project for Vermont Legal Aid, said George’s decision was “tremendously courageous.”
“She has recognized … that the judicial system does not exist for the purpose of revenge, but mostly for the purpose of protecting public safety,” he said. “And she is taking really seriously her duty to only prosecute those cases in which she has a well-founded belief she can prove the charges beyond a reasonable doubt.”
Burlington Mayor Miro Weinberger said Wednesday he understood George’s decision, but he hoped the Department of Mental Health would ensure the individuals would remain institutionalized for as long as necessary to ensure public safety.
“These were terrible, terrible acts of violence that took place on the streets of Burlington, and the people of Burlington have the right to feel assured these individuals will not commit similar acts in the future,” he said. “I think the Department of Mental Health has a responsibility to do that.”
McCullough said that the insanity defense is “not a get out of jail free card,” and that Vermont Legal Aid clients have remained institutionalized longer than they would have spent in custody if found guilty.
“The important point is nobody’s getting out of custody without a throughout examination of all the circumstances in court,” McCullough said.
Alan Keays contributed to this report.
Read the story on VTDigger here: George defends insanity case dismissals amid public safety worries.