- Matthew Roy
- Sarah George
Prosecutor Sarah George was halfway through an interview with Seven Days last week when the news broke.
Vermont Gov. Phil Scott had asked Attorney General T.J. Donovan to review her recent decision to dismiss murder and attempted murder charges against three defendants accused of horrific crimes who claimed insanity as a legal defense.
Up until that point in the interview, George, Chittenden County's state's attorney, had been answering questions about her decision with relative ease. She addressed the timing of the move, the concerns expressed by Burlington officials about public safety, and her belief that the state's mental health system, though underfunded, is still better equipped to handle such people than prisons are.
But when Seven Days informed her that the governor, who appointed George as state's attorney in early 2017, was questioning one of the toughest prosecutorial decisions of her fledgling career, she seemed taken aback.
"So, why didn't the governor call me and ask me?" George asked.
Asked to respond to the critique — which had just been made public on VTDigger.org and which she had yet to review in detail — George sighed, rubbed her eyes and, after a long pause, offered a response both measured and barbed: "It always frustrates me when individuals make statements about a decision I've made without all the facts."
And with that, what had been a modest skirmish over a controversial charging decision flared into a political firestorm that shows no signs of abating.
George soon took to Twitter, where she has nearly 1,500 followers, and let loose a flurry of potent counterpunches. She offered a point-by-point refutation of the governor's letter and suggested she was far better positioned to make such decisions.
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. https://t.co/yx2fDWBIzg— Sarah Fair George (@SarahFairVT) June 7, 2019
Scott had characterized the cases as "among the most violent crimes committed in Vermont in recent memory."
"Yes, they are," George observed. "I know because I saw ALL the evidence, I saw the videos, I met with the victims & their families countless times."
She went on to question the governor's motives in going public ("If he really wanted answers, he would have found me.") and called his critique "insulting" to her and victims in the cases.
"I have not made ANY decisions based on politics, and I will absolutely not start now," she wrote.
The charged rhetoric underscores the trauma the three crimes inflicted on the communities where they occurred, the victims and their families, and first responders.
Aita Gurung killed his wife, Yogeswari Khadka, 32, with a meat cleaver outside the family's home in Burlington's Old North End in October 2017. He severely injured his mother-in-law, Tulasa Rimal, in the attack.
In dismissing his case, George said experts concluded Gurung was psychotic at the time of the crime. "Voices were telling him to kill his wife," and he did so in a "violent frenzy beyond anything that he exhibited before," she wrote.
After George's decision, Burlington Police Chief Brandon del Pozo posted his reaction on his Facebook page, noting that his officers had stopped the attack and tried to aid the victims. His statement was not meant as criticism of George, he said. It focused on the couple's 8-year-old daughter, who was not home at the time of the attack.
"As long as I live I will never forget how a little girl changed before my eyes when her grandfather told her that her mother was gone and was never coming back," del Pozo wrote.
George also dismissed charges against Louis Fortier, who was accused of murder in 2017 for fatally stabbing fellow homeless man Richard Medina, 43, in broad daylight on the corner of Church and Cherry streets in downtown Burlington. Experts hired by the prosecution and defense alike agreed Fortier was insane when he stabbed Medina.
She also dropped first-degree murder charges against Veronica Lewis, who shot her firearms instructor, Darryl Montague, multiple times at his gun range in Westford in 2015. He survived. A defense expert diagnosed her with schizoaffective disorder characterized by paranoid delusions. The state's expert concurred.
All three have been patients at the Vermont Psychiatric Care Hospital in Berlin, a secure facility, since shortly after their arrests.
In each case, the state lacked enough evidence, in the face of such expert testimony, to convince a jury that the defendants were sane at the time of their crimes and should be held responsible by the criminal justice system, George said.
"This was not an easy decision," George said in an interview. "This was not something I took lightly. This is something I lost a lot of sleep over. And I would never have done it if I felt like there was another option."
George's decision was striking partly because it closely followed her successful prosecution of Steven Bourgoin, who killed five Mad River Valley teenagers in a wrong-way crash on Interstate 89 in October 2016.
Bourgoin's attorney, Bob Katims, also raised an insanity defense at trial, but a jury found the Williston man guilty of murder last month.
George decided to dismiss the charges against the three other defendants in April but delayed the move to ensure that Bourgoin received a fair trial, she said.
A key difference between those cases and Bourgoin's, the state's attorney explained, is that the prosecution had a credible expert who found Bourgoin sane at the time of the crash. Defense experts who concluded otherwise largely relied on statements by Bourgoin, including his claims about his internet searches that prosecutors proved were false, George said.
Bourgoin will likely draw a lengthy prison term when he is sentenced this summer. As part of the agreements to dismiss the other defendants' criminal cases, judges committed all three to the care of the Department of Mental Health.
That's what appears to have most concerned Scott. In his letter, he noted that "there is no longer a possibility of supervision by the Department of Corrections or conditions of release to protect Vermonters."
Decisions about the continued treatment of such patients, including whether they need inpatient or outpatient care, when they'll be released, and under what conditions, will now be made by each patient's clinical team, attorneys and family law judges.
Involuntary commitment orders are initially for 90 days, after which the state must ask a judge annually for a yearlong extension.
"The state has to justify keeping the person confined based on the existence of the mental illness and the danger that the person might pose if they were not provided with treatment," explained Jack McCullough, director of the Vermont Legal Aid Mental Health Law Project.
McCullough and three other Legal Aid attorneys represent most of the state's patients in such cases. The proceedings are generally closed to the public and don't get media attention, he said.
State and federal laws prohibit the department from disclosing treatment information about any patient, including details about their release, according to Department of Mental Heath Commissioner Sarah Squirrell.
That troubles George, who noted that victims such as Montague will be in the dark. Crime victims should be told when the perpetrator is released, she said.
But that's not possible, said Mourning Fox, deputy commissioner of the Department of Mental Health. If the department feels the person is an imminent danger to themselves or others because of their mental health issues, they won't be up for release, Fox said. Further, if officials know that someone is a serious risk to another person, they have a "duty to warn" by alerting law enforcement.
Beyond that, the department can't reassure the community or crime victims that a patient won't become violent again, Fox said. That's not something the Department of Corrections or Parole Board can do, either, he noted.
"None of us can guarantee that someone will or will not do something in the future," Fox said.
The department that must care indefinitely for these three patients has chronic capacity issues. There are just 45 Level 1 beds in the state for those who require intense treatment for acute mental illness. That's actually more than Vermont had before the state hospital in Waterbury closed after flooding during Tropical Storm Irene in 2011.
Nevertheless, the number falls far short of the need, according to the Vermont Medical Society, which has called the situation a crisis.
Squirrell acknowledged that capacity is a serious issue. Patients whose cases originated in the criminal justice system tend to spend longer in treatment. In turn, fewer beds are available overall, and patients who urgently need care wait in emergency rooms, she said.
Gurung had been released from the University of Vermont Medical Center, where he had sought treatment, just hours before the attack.
Squirrell said 12 additional inpatient beds at Brattleboro Retreat are coming online in 2020, but they aren't all that's needed. Investments in lower-level facilities and residential programs are also crucial to ensure that people have appropriate places to go as their treatment evolves, she said.
Donovan, who formerly served as Chittenden County state's attorney, said he didn't expect to decide whether to refile criminal charges anytime soon. He called the governor's letter "an extraordinary request" and expressed hesitation to intervene.
"I understand the issue of public safety, but I also understand the issue of due process," Donovan said. "The fact is that Sarah George is an independently elected prosecutor, and it's her case, and it's not my role to second-guess elected prosecutors who are litigating their cases."
Nevertheless, since public safety concerns have been raised, Donovan said it's his responsibility, as both the state's top law enforcement officer and counsel for the Department of Mental Health, to find a way to address them.
"There are no easy answers on this," Donovan said. "The fact of the matter is, we have a problem, so let's solve it."