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How Should Vermont Handle Insanity Cases? Debate Grows After Charges Refiled In Burlington Killing

Aita Gurung is led to his chair during his second arraignment.
Sasha Goldstein
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Seven Days
Aita Gurung's case was dimissed in May, but in an unusual move, Vermont Attorney General TJ Donovan refiled charges in September. The case has set off a debate over how to handle people deemed not guilty by reason of insanity.

The refiling of murder charges in a 2017 killing has become the center of a politicized debate: how should the state should handle people, who because of mental illness, can't be held criminally responsible for their actions?

Last week, attorneys gathered in a relatively empty courtroom to hash out procedural details in the case of Aita Gurung. In some ways, it was an unremarkable 40-minute affair as the judge and attorneys worked to set deadlines for future hearings and discussed the timeline for moving the case forward.

But what was notable was the fact that this hearing was even happening. Charges against Gurung were dropped in May, but then were refiled last month.

More from VPR: Vermont Attorney General Refiles Dismissed Murder Charge After Request From Governor [Sept. 12]

The case at the heart of this matter is one of the more grisly cases in recent memory. Two years ago, in the middle of the afternoon, Gurung allegedly stood in front of his house in Burlington and repeatedly struck his wife with a meat cleaver, according to court documents. Gurung's mother-in-law lay on the steps of the house a few feet away, bleeding. Gurung's wife, Yogeswari Khadka, died.

Just hours before the alleged crime, Gurung had left the University of Vermont Medical Center, where he'd been for a few days after he voluntarily checked in to get treatment for mental health issues.

A house in Burlington with a police car in front of it.
Credit Taylor Dobbs / VPR File
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VPR File
In 2017, Aita Gurung was arrested in Burlington after allegedly attacking his wife and mother-in-law with a meat cleaver. Gurung's wife, Yogeswari Khadka, died.

Chittenden County prosecutors thought it was obvious Gurung was legally insane, meaning he couldn't be held criminally responsible for his actions. Three mental health experts, including one hired by prosecutors, said he was psychotic at the time of the alleged crime.

Gurung went into the custody of the Vermont Department of Mental Health for treatment. Chittenden County State's Attorney Sarah George dismissed charges against him.

Then in September Gurung was back in court, facing charges that only a few months ago had been dismissed. Gurung was led into the courtroom in shackles and arraigned for a second time on charges of murder and attempted murder. During the proceeding, he kept his head down and stared at the floor.

This time, Vermont Attorney General TJ Donovan was prosecuting Gurung; his office had reviewed and refiled the case after a request from Gov. Phil Scott. The governor had publicly raised safety concerns about the dismissal of three cases involving the insanity defense.

More from VPR — Gov. Scott Voices Concern After 3 Major Chittenden County Cases Dismissed [June 6]

Donovan, the Democratic attorney general, is reportedly considering a run for governor. He admitted he wouldn't have refiled the charges if Scott, a Republican, hadn't asked. But Donovan argued his decision was about restoring public trust.

"And the issue of sanity is a question of fact, and a question of fact you put in front of a judge or you put in front of a jury," he told reporters after Gurung's arraignment in September. "You put all the evidence out there — the good, the bad — and you let people decide. That's how our system of justice works."

Gurung's attorneys and other legal experts have questioned the ethics of the highly unusual choice to refile. 

"Criminal cases aren't theater and they're not therapy," said David Sleigh, an attorney in St. Johnsbury. "If you're asking the jury to convict the defendant in spite of unrebutted evidence that he's insane, then you're asking them to ignore their obligations under the law … and prosecutors have an obligation not to ask juries to ignore the law."

Gurung's attorney says prosecutors have not introduced any new evidence. The court is also weighing whether the AG's office can get a new expert to review Gurung's sanity claims.

"People need to know insanity defenses are rare. They're rarely successful." — Defender General Matt Valerio

The insanity defense, which exists in most states, is a long-standing legal concept. Some forms of it can be traced back to the 1500s, according to PBS Frontline.

At the most basic level, if someone is found legally insane they are not held criminally responsible for their actions. In Vermont, the defense has to prove insanity "by a preponderance of the evidence" — a lower standard than "beyond reasonable doubt."

The Vermont Judiciary doesn't collect statistics about how often the insanity defense is used, but according to Defender General Matt Valerio, it's not common.

"First of all people need to know insanity defenses are rare. They're rarely successful," Valerio said. "When they do occur there is a structure through the Department of Mental Health that allows [the Department of] Mental Health to hold people as long as they are a danger to themselves or others."

That policy is at the heart of this debate: the Vermont Mental Health Department can release people once they've been treated and due to privacy regulations, that information is not publicly shared.

For prosecutors, like Windham County State's Attorney Tracy Shriver, that's a problem because she says prosecutors are focused on public safety and the mental health system is not.

"Our concern as prosecutors for keeping the public safe for someone who can't be held criminally responsible does not currently mesh well with mental health professionals whose understandable focus is treatment of folks who are mentally ill," Shriver said.

There are potential changes on the horizon for how the state handles these cases. Lawmakers are mulling new legislation that would require at least three years of state supervision for people found not guilty of murder or attempted murder by reason of insanity.

"Our concern as prosecutors for keeping the public safe for someone who can't be held criminally responsible does not currently mesh well with mental health professionals whose understandable focus is treatment of folks who are mentally ill." — Windham County State's Attorney Tracy Shriver

But not everyone sees the current system as broken. Jack McCullough has represented patients in the mental health system through Vermont Legal Aid. He says, in his experience, people aren't slipping through the cracks.

"I personally have represented people and continue to represent people who may have been charged with a crime 10, 20, 30 or more years ago who continue to be either physically confined or committed to the custody of the Department of Mental Health," McCullough said.

Prior to the refiling of his case, Gurung's condition had reportedly been improving, though he was still at a high risk for suicide, according to his attorney. He was held in a locked treatment facility in Middlesex, but after charges were refiled in September, the Department of Mental Health said it would no longer support the order that placed Gurung there, according to court documents.

The Vermont Department of Mental Health wouldn't talk specifically about Gurung's case, however the department says, generally, new criminal charges can affect a person's placement.

The court ruled while the case proceeds, Gurung will be held in jail in St. Albans. In a recent interview Sandra Lee, a public defender representing Gurung, expressed concern that his condition was deteriorating in jail.

"When you put somebody who's already determined to be severely mentally ill and then you put them into the jail ... it's not surprising if there's a consequence," Lee said.

Gurung's trial is set to begin in March, but before that there are still a number of legal steps — including a hearing to determine if he's mentally competent to stand trial.

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