How does Vermont deal with people accused of violent crimes, but who are also severely mentally ill? It’s a question swirling at the center of three high-profile cases in the state, over which Chittenden County State’s Attorney Sarah George is clashing with the attorney general.
VPR’s Mitch Wertlieb spoke with Sarah George about the recently-refiled charges and comments about them made by Attorney General TJ Donovan. Their conversation has been edited and condensed for clarity.
Vermont Attorney General TJ Donovan has refiled murder or attempted murder charges in three separate cases that were dismissed in 2019 by Chittenden County State's Attorney Sarah George, after she determined the three people accused were all legally insane at the time the crimes were committed.
Here's how Donovan described his decision in the most recent refiling in a March interview:
“There is no doubt that mental illness is a factor here, but it should be clear that because somebody suffers from mental illness does not mean they are legally insane. Insanity is a legal defense. It's not a medical diagnosis. It goes in front of a jury to weigh the evidence and to make a determination. That's how our system works.” — Attorney General TJ Donovan
Shortly after the interview aired, State’s Attorney Sarah George took to Twitter to say the attorney general got “so many aspects of our laws and our system just … wrong.”
Incredibly disappointing to hear our AG, the top lawyer in VT, get so many aspects of our laws and our system just... wrong. To trample on the prosecutorial discretion of an independently elected official based on misinformation is politics at its finest. https://t.co/BOq3dRpF4S
— Sarah Fair George (@SarahFairVT) March 25, 2021
Mitch Wertlieb: What specifically do you think Attorney General TJ Donovan got wrong?
Sarah George: I'm really grateful that you picked that clip, because that is exactly the sentence that really upset me. That's not how our system works. I think it's really important for the public to know that that's not how our system works.
You asked him "what's changed" [with regard to charges being refiled in Louis Fortier's case], and that was his response. He said that in his view, insanity is a legal defense and not a medical diagnosis, which is true. That hasn't changed. That's our law, that a legal defense is a jury determination.
What I think is important for the public to know is that, as prosecutors, we are presented with evidence from law enforcement, witnesses [and] defense counsel every day that may tend to prove or negate somebody's guilt. And it is our ethical obligation to use our discretion and our ethical standards to decide whether an individual's legal defense is valid, or whether we believe we can overcome it at trial. And we dismiss cases all the time based on legal defenses that we find valid; often [claims of] self-defense, defense of others, actual innocence and insanity. These cases often don't go to trial, because the state will regularly find that they have met that burden, and we can't overcome it.
So, yes, I know we're talking a lot about insanity, which I think is why it's a little bit harder for the public to fully grasp. But we stipulate to people being insane at the time of their offenses all the time. And those people are put into the custody of the Department of Mental Health. Every week, that's happening in cases.
So it doesn't have to be a jury determining that, as it seemed to me that TJ Donovan was implying?
Absolutely not. It can be. If we think that we can overcome that burden, it absolutely can be a jury determination, as evidenced by Steven Bourgoin’s case.
That was the case of someone who was driving the wrong way on a state highway and ended up getting into a crash that killed a number of people?
That's correct. Five teenagers. He presented an insanity defense and the state — myself, as the assigned prosecutor — felt we had the evidence to overcome that burden. And so we did put it in front of a jury to decide. The difference is that we don't always have that evidence to overcome, and it is our ethical obligation to [then] dismiss those charges and put those people in the custody of the Department of Mental Health.
What I think might make this issue a little bit clearer for people to understand is that self-defense, or defense of others, is also a legal defense, in the exact same way that insanity is. So for the attorney general to say that the legal defense of insanity is for a jury to decide, but then refuse to prosecute a single law enforcement officer who has killed somebody because [the attorney general] finds their legal defense to be valid, is disingenuous and hypocritical.
If he truly believes what he said, then he should be charging every single officer-involved homicide, and letting juries decide. But instead, he looks at the evidence, and he has decided that that legal defense is valid, and not brought charges. I think that's an easier way to sort of see the comparison, and the hypocrisy.
TJ Donovan also said that he would not have refiled these charges at all if Gov. Phil Scott hadn't stepped in, and sent a letter asking him to look at these cases. As attorney general, he does have general criminal jurisdiction within the state. It's not unprecedented for the AG to reexamine cases like this.
I wonder why you specifically take issue with him, saying that he was “trampling on your discretion” here, something else that you tweeted after you heard the interview.
I do think it's unprecedented. I haven't been doing this all that long, but I can't recall a time where an attorney general has overruled, essentially, the independent decision of an elected prosecutor.
For us to have prosecuted a case, and actually litigated the case through the court system, and then made a determination to dismiss the case, and then have the attorney general come in and overrule that and refile and start over … I do think is quite unprecedented.
And again, for the attorney general to do so at the request of a governor who is not a prosecutor, is not a lawyer, and make that decision without any additional evidence is, in my opinion, unprecedented and trampling on prosecutorial discretion, which is the cornerstone to our system.
One of the things that we focused on when I spoke with the attorney general was one of these three murder, or attempted murder, cases that dealt with Louis Fortier. He said it may be reasonable for someone to think that Louis Fortier suffers from mental illness, but he still allegedly killed [Richard Medina] in cold blood. And if he's not brought to trial to let a jury determine whether a prison sentence is appropriate, then justice is not being served for the victim's family.
What would you say to somebody who agrees with the attorney general, that having Fortier be treated at the state psychiatric hospital denies justice that perhaps the victim's family members may have been seeking?
I think that that is something that the community — and, really, our nation — struggle with all the time, is thinking that justice means jail.
I don't want to speak on behalf of the family of Richard Medina. But from my conversations with them, that just wasn't their focus. Most victims just want to know what happened, and why it happened and how you're going to make sure it doesn't happen again.
You know, the facts of all three of these cases are horrific. And, yes, victims do have a right to go through the system. But that happened. The victims in these cases, and their families, went through the system. And they don't have a legal right in the outcome of a particular case.
And when we, as prosecutors, are presented with valid legal defenses, our ethical obligations as officers of the court trump that. And that's a really unfortunate reality, but that's his reason for doing this, in my opinion. In his eyes, the only way for someone to account for this is for them to go to jail. And, you know, that says more about our system and our AG's view of the system than anything else.
There’s also the matter of public safety, because in the interview, the AG indicated that Louis Fortier could be released from the psychiatric hospital as early as November. Now, this is something that Fortier’s attorney [David Sleigh] said was not at all under serious consideration, even if it's technically true. What is your understanding of the chances that Louis Fortier could be released from the psychiatric hospital with no subsequent supervision or safeguards?
That's absolutely inaccurate and disingenuous.
I don't have access, of course, to his care, but the Department of Mental Health cannot release somebody into the community if they find that they are at risk of harm to themselves or others. And I am not aware of any plan to have released Mr. Fortier any time soon.
The AG said that [his state custody] is on a 90-day rolling schedule, that's inaccurate. They are on a one-year rolling renewal. And so Mr. Fortier's just happens to be in November. At that time, they are essentially renewed for another year of hospitalization. And that happens every year.
For the attorney general to sort of fearmonger into this idea that [Fortier] might be released in November is just wrong. It's wrong, and it's not based on any information that he might have.
We've closed our comments. Read about ways to get in touch here.