Jon Margolis is VTDigger’s political columnist.
It’s politics, says Sandra Lee of the decision to charge Aita Gurung with murder even after charges against him were dropped because the state’s attorney concluded that she could not rebut his insanity defense.
Such cynicism.
Politics? Heaven forfend.
First of all, Sandra Lee is not an objective observer. She’s Gurung’s lawyer.
Anyway, what’s wrong with politics? In a democracy, elected officials should pay attention to the wishes of the voters, most of whom probably think a man should be punished for allegedly hacking his wife to death with a meat cleaver on a Burlington street in broad daylight.
(The “allegedly” is needed because Gurung has not been convicted; nobody argues that he didn’t do it).
Then there is the matter of “public safety.” That’s what Gov. Phil Scott cited in June when he urged Attorney General TJ Donovan to review State’s Attorney Sarah George’s decision to drop charges against Gurung and two others in separate cases. Donovan mentioned it, too, as he announced that he would bring the case against Gurung himself. So did Burlington Mayor Miro Weinberger, who said at the time that “the state must … prevent these individuals from returning to our streets and neighborhoods.”
Right. Because had Scott and Donovan not intervened, if they had let stand the decision that Gurung was insane at the time of the event, you know what would have happened?
Gurung, now 36, would have spent many years if not the rest of his life in a safe, secure, locked facility in the custody of the Department of Mental Health. Just like Elizabeth Teague, who killed her boss in the Eveready battery plant in Bennington in 1991. She has not returned to any town’s streets and neighborhoods.
It’s true that, if left in the custody of the Mental Health Department, Gurung could have been released whenever officials deemed him no longer a threat to himself or others. In the case of a man who hacked his wife to death, that’s likely to be close to forever.
Besides, convicted murderers get released, too. Vermont law does give judges and juries the option of sentencing a convicted murderer to “life without the possibility of parole.” But that’s very rare.
“If you live long enough, you usually get out,’ said Matthew Valerio, the state’s defender general.
It isn’t as though Vermont is awash with claims of insanity defense. They are rare, Valerio said, in part because they almost always fail; juries tend to reject the claim.
In this case, though, the psychiatric consultant hired by the prosecution (Dr. Albert Drukteinis of Manchester, N.H.), reached the same conclusion as the court-appointed expert (Dr. Paul Cotton of Burlington).
Think about that for a minute. Assume complete professional integrity on everyone’s part. Still, a consultant knows who his or her client is, and what that client wants.
The client in all three cases was the state’s attorney, a prosecutor. It is in a prosecutor’s interest to have the psychiatric consultant find that the accused is sane and fit for trial. Then the prosecutor can get a conviction. That’s a prosecutor’s goal.
So when the consultant, knowing that this is not what the client wants, nonetheless finds that the accused was insane when the crime was committed, a prosecutor has little choice. Before her now are two professional assessments that an accused person was insane.
And zero assessments to the contrary. What is the prosecutor to do? Go “psychiatrist shopping” in hopes of finding one who will come up with another verdict?
In Gurung’s case, the psychiatric judgment could not have been a big surprise. Just hours before he killed his wife and seriously injured his mother-in-law (on Oct. 12, 2017), he had been released from the University of Vermont Medical Center at the end of a week-long stay for a mental health evaluation. Dr. Drukteinis found that Gurung was psychotic at the time.
State’s Attorney George did the right thing legally, ethically, and – yes – politically. That’s because doing the right thing politically in American democracy does not always mean doing what most of the voters want at any moment. It means following the laws passed by the democratically elected Legislature and the rules and procedures established (and authorized by statute) by the judges chosen by those legislators and by the voters.
Does this mean that Scott did the wrong thing by urging Donovan to review George’s decision to dismiss charges in the three cases? Or that Donovan did the wrong thing when he refiled the charges against Gurung?
There has been at least enough rushing to judgment over these cases, and no interest in aggravating that rush here. Scott does seem to be running for a third term next year, Donovan has indicated he might run against him, and it would be unrealistic to suppose that both of them wouldn’t consider the political consequences of what they did. That does not prove that they were not sincerely upset about George dismissing the charges.
Still, the world would be a better place if governors (and presidents) didn’t meddle in prosecutions and trials. Separation of powers is not sacrosanct. But it’s a very good idea, especially when it comes to the criminal justice system.
The attorney general, of course, is part of the criminal justice system. Donovan had every right to refile the charges, and he might well prevail. If the case goes to a jury, he has a good chance of getting a conviction.
Not without some damage to his reputation among the state’s lawyers, though. On Twitter and in private conversations, several of them have been critical of Donovan for agreeing to re-open the case.
And Sarah George seems ready to encourage them. On Tuesday, she tweeted a line from Lizzo: “Why’re men great till’ they gotta be great?”
Even those of us who until now had no idea who Lizzo was (singer/actor Melissa Viviane Jefferson of Minneapolis) could figure out which man the state’s attorney had in mind.