'Insanity Is A Legal Defense ... Not A Medical Diagnosis': AG Donovan Defends Refiled Murder Charges

Mar 25, 2021

Three separate cases involving murder or attempted murder charges were dismissed by Chittenden County State's Attorney Sarah George in 2019 because all three defendants had “substantial evidence,” including evaluations by mental health professionals, that they were legally insane at the time the crimes were committed.

But Attorney General TJ Donovan has refiled charges in all three cases. Most recently, last week when he refiled first-degree murder charges against Louis Fortier.

VPR’s Mitch Wertlieb spoke with Attorney General TJ Donovan about the murder charges against Louis Fortier, why the charges were dismissed and why they were refiled a week ago. Their conversation below has been edited and condensed for clarity.

Mitch Wertlieb: This charge for first degree-murder against Louis Fortier was dropped about two years ago [in June 2019]. Where has he been since that time?

TJ Donovan: Mr. Fortier has been in the Berlin Psychiatric State Hospital — what we would commonly refer to as the Vermont State Hospital — which is a secure facility in Berlin, Vt.

Can you tell us what's changed about Fortier’s case that warranted the charges being refiled last week?

Sure. What’s changed, I think, is my view that insanity is a legal defense. It is not a medical diagnosis.

[Chittenden County] State's Attorney [Sarah] George is absolutely right: there is evidence based on expert opinion that these individuals can not appreciate the criminality of their conduct, [which is] the standard for insanity.

That being said, under our legal system, the people who decide, who make the finding about whether or not somebody is insane or not, is the jury. Expert opinion is just that: it is evidence. You present the evidence in the court of law to the jury, and the jury gets to decide whether somebody is insane or not. To the best of my knowledge, we've never had a finding in Vermont of a verdict of “not guilty by reason of insanity.”

"You present the evidence in the court of law to the jury, and the jury gets to decide whether somebody is insane or not." - Attorney General TJ Donovan

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.

More from VPR: Vermont Attorney General Refiles Dismissed Murder Charge After Request From Governor [from September 2019]

As you know, the way that police and the criminal justice system interact with individuals who have mental illness has become a real major part of the conversation around police and criminal justice reform. And Louis Fortier's attorney, David Sleigh, said that intervention of the attorney general's office in this case is “retrograde” in this respect because, again, health experts say that Fortier has severe mental illness.

I understand that you're saying this is something that a jury should determine. But he has been in state custody at the psychiatric hospital. How would it serve justice or the public to charge him now and potentially put him on trial for this crime?

Let's start with the fact that the allegation is that Louis Fortier stabbed Richard Medina in broad daylight on Church Street [in 2017]; stabbed him in the face, stabbed in the neck. Richard Medina died on Church Street in broad daylight. I think that there has to be an accounting for that.

Now, let's talk about what the Department of Mental Health is. So, when these cases are dismissed, that means that there is no record. [It means] that these cases are sealed. And when you go over to the Department of Mental Health, it is not a public safety agency. Their standard is very clear. They look at whether or not somebody is suffering from mental illness, whether or not somebody is a danger to themselves or to others.

And then the law is: that individual has to be placed in the least-restrictive setting [available], and then you have a 90-day rolling review. Meaning this: Mr. Fortier can be released to the public with no safeguards in place, no treatment in place, no supervision.

His lawyer said, in the media, that [Fortier] was going to be released in November. That was news to me. I didn't know that. I think that the victims and their families have a right to go through our justice system. And I think that public safety has to be addressed. You can achieve that by going through the criminal justice system.

[Editor's note: Fortier's attorney, David Sleigh, told VPR his client is subject to a hospitalization order through November and added, "There is no serious discussion of him going anywhere other than the Vermont Psychiatric Care Hospital in Berlin."]

More from VPR: Gov. Scott Voices Concern After 3 Major Chittenden County Cases Dismissed [June 2019]

I am curious about refiling these charges, after Gov. Phil Scott sent you that letter. Would you have refiled these charges, had the governor not sent you that letter?

"I didn't ask to take these cases on. I was asked by the governor to review these cases ... I did say that I was going to review it, that I was going to exercise my own discretion, based on my review. And I came to a different conclusion. And it's not unusual for lawyers to disagree." - Attorney General TJ Donovan

No, I wouldn't have.

Look, I’ve been state's attorney. I understand the role, I understand the job. It's a tough job. And State's Attorney George — somebody who[m] I have a lot of respect for — is doing a good job.

That being said, as you indicated, I didn't ask to take these cases on. I was asked by the governor to review these cases. The attorney general's office is the chief law enforcement office for the state of Vermont. We have what's called concurrent jurisdiction with the 14 [distinct] county state's attorneys.

There's a practice of respecting our state's attorney's decisions. But I think that this was such an extraordinary circumstance, given the severity of the crimes, the governor's request to review it, that I did say that I was going to review it, that I was going to exercise my own discretion based on my review. And I came to a different conclusion. And it's not unusual for lawyers to disagree.

More from VPR: Dropped Murder Charges Prompt Lawmakers To Assess Mental Health System's Role In Public Safety [July 2019]

If Mr. Fortier goes before a jury, if he's convicted and is put into the custody of the Department of Corrections, given his past, given what we know has happened to this point, the fact that he's been in state custody in psychiatric care for several years now, would a prison environment really be the best place for him and other prisoners?

It's a fair question. And I think the issue of mental illness in our jail system is a major concern of mine. I think there's real equity and fairness issues. While I can't speak directly about this case because it's now a pending case, I would point to one of the other cases [dismissed over the accused’s insanity defense and since refiled.]

Veronica Lewis has now entered a guilty plea in that case. Now, the proposed plea agreement has not been accepted by the court, but she essentially has 40 years of probation with mental health treatment, with structure and oversight, so she can be successful. And if she is successful, our community is successful. And that's the balance you search for.

But I also go back to this feeling that, God forbid, something like this happens again in our community. And if I could have done something, even in a small way, to prevent it through the use of our legal process, I'm going to do my job.

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