 Welcome back folks. This is House Corrections and Institutions. This is Wednesday afternoon, April 14th. We are starting work on S3. We do not physically have the bill. It is in House Judiciary, but they've asked us to take a look at Section 5 and 6. Section 6 is with establishing a workgroup that will look on whether, on a recommendation of whether or not we pursue establishing a forensic unit in the state of Vermont. So I'm going to start with Judge Gerson because we really need to understand the different statuses. And one thing I spoke earlier about that there are two, two situations. Sometimes there's this together and sometimes they don't. At the time of the crime, someone could be deemed to be insane at the time of the crime, but competent to stand trial. And that would have a path. The other arena is someone is sane. They're sane at the time of the crime. But have been deemed to be incompetent to stand trial. And that's another path. So all of this really starts in the court. So in order to understand this, I'd like to have the conversation with Judge Gerson to provide clarity to this. What happens? Where does the person go for evaluation? So we end up staying if they end up staying anywhere with that process is this so we can get our hands around what do we mean by forensic. So judge, I'm going to turn it over to you to really make this clear to us. Good luck. I can always use the good luck. Thank you, Madam Chair for the record Brian Greerson Chief Superior Judge. I'm relying on S3. You use the term. Chairman's forensic. And I think the simplest definition I can give you is the intersection of medical science and the legal, the criminal process. And when I think of the term forensic, I am asking a medical professional psychiatrist to do an evaluation of an individual in a criminal context as to either competency or sanity or both. And it's also used sometimes in the context of family court cases where we will ask a psychiatrist psychologist to conduct the forensic evaluation of a family. In other words, to perhaps make recommendations as to who should be the custodial parent and relating those kinds of issues so the term forensic is not strictly limited to the criminal process. But that's what this committee. Interest is concerned is at this point. I did mention to house judiciary I think it was last week when I testified on this. This is primarily a policy bill so there's not a lot in the bill that I did comment on but on section six of the forensic study group. It's the only study committee I've been left out of in a few years so I told the committee I would like to be included in that. Not just because I was left out but because it's, it is a very important committee and this issue is, is one that I have a particular interest in. The process, if you will, we're dealing essentially with two terms competency to stand trial and sanity, either at the time of the offense, or an ongoing issue of, or history of sanity. And someone comes into court, and it's important to keep the populations in mind when you're talking about these issues because someone can come into court charge with a very serious violent offense. Or they can come into court on on the most. I'll say minor misdemeanor offense. In either case, if their competency of the individual is raised, that begins the process when I say it's raised. I know from sitting on the bench that that issue can come to you in many different ways. Sometimes it's apparent from the affidavit of probable cause that forms the basis for the charge in reading that you can glean perhaps a history. The basis to history, the police have with the individual. It may be that just the behavior in the affidavit raises a question so that at the first proceeding for anyone is called a rule five proceeding that leads to an arraignment, the initial appearance in court. So with that initial appearance. You may have information the affidavit. It may be, for instance, that the prosecutors had a history with this individual and they raised the issue of competency. The defense may raise the issue of competency. There are even times when we will when I say we I mean the court may be informed by transport officers that the behavior of the individual in their custody is concerning. But what I'm trying to say is there's any number of ways that the question of someone's competency can come to the court. If the issue is raised, we can order an evaluation for competency and or sanity and I'll get into the two. It's not it's not a question where if let's say that the defense raised the questions and judge, we would like an evaluation for competency. It's not an area where we get into a discussion or if you will a disagreement with the party requesting. When someone request competency. It does change the course of a case and we will order that that evaluation. As contracts, I can use that term with the Department of Mental Health, they have a staff of psychiatrists that conduct these evaluations as neutrals. Initially. And so when we order an evaluation for competency. That will be done by the psychiatrist employed through or by I'm not sure the exact arrangement with the department departmental health. Those evaluations can be conducted in the community. If the individual is one. I'll go back for a minute. When that question of competency is raised. We will ask a professional medical. There's a term for it and it's skipping my mind but in other words, a person with expertise in evaluation will come to the courthouse or if necessary go to the facility to make a preliminary determination of the individuals. And that's the status where that is significant is that if they indicate that the person needs to be evaluated but they indicate that they do not have to be. It does not have to be an inpatient evaluation. That allows us to release someone into the community on conditions of release and include an order of an evaluation. Pre pandemic were routinely conducted in a courthouse in other words, we would set up a date and time for the individual to come back to the courthouse where they would literally be interviewed, evaluated by the neutral psychiatrist would then issue a report. That report comes before us in all the parties at that point for a hearing on the issue of competency. And while that issue is pending, or before that issue is resolved. The case is really in a holding pattern. The person may be in the community as I said in I'll go back to more violent cases because it's a different approach. If that person can be in the community, they're expected to show up for the evaluation, and we go proceed from there. Once we have that report will schedule a hearing on competency. If we are satisfied from the other sometimes there is an agreement by the parties in other words once that report is issued. The parties, meaning the state and the defense may agree based on the report that person is incompetent. They may agree that as a result of the report the person is competent and we move on to the next phase there are times when there is not an agreement and we have to have a hearing on competency. But it that initial determination dictates the flow of the case if the person is found competent. We continue with the normal processing of the case. When that issue first comes before the court. It may come in the form of the issue of competency alone, or it may be an issue of competency and sanity. Again, we're relying on other information coming to us to make that determination does not every evaluation that we request that we will request an evaluation of both. I think to a great extent it depends on the nature of the offense and the behaviors that are either indicated by reference to the affidavit or other information coming to the court. So it's not automatic that both both are considered. But that that's a case by case determination. If we start out with an evaluation of competency, it may turn out during the course of that evaluation that we gain more information which could lead to a subsequent evaluation. The reason I distinguish the community cases from the more serious the violent cases are that in those situations when the issue of competency is raised, it's usually coupled with based on the evaluation of the medical professional that there be an inpatient evaluation and those people are generally remanded either because bail has been set, or in a very serious case it could be held without bail, remanded to a facility a correctional facility, and the department could then conduct an evaluation of the individual at the facility. So which department would do that evaluation department of mental health does the evaluation, while the person is in the custody of the department of corrections. And, again, when the report is issued comes back to court and the report is made available to all the parties, and we still have to consider that question of competency, either by agreement or by contested hearing. But the person. Again, I'm assuming for the sake of this discussion that we're talking about a serious offense where someone has been detained, and they will continue to be detained the question then becomes in what capacity. So, I can give you an example. I mean, I will stop anywhere if anybody has questions so otherwise I'll just continue. Yes. So right now we're only looking at the issue of competency to stand trial. So there's two avenues that the person could go for an evaluation. If it's if the court deems it wasn't a real violent crime, or where there could be other factors to that, and the court feels well the evaluation could happen in the community. Yes. The other path is the court could deem this person there's some issues we really need to detain the person to have this evaluation done for competency. So in that particular situation they would go to an incarcerated setting. They're being incarcerated, but DMH will come in and do the evaluation for competency. And understand that they're the reason they're being detained is not the competency. It's because they under the bail statute they present either risk of flight or they have been detained without bail because of the nature of the offense and the potential. Do any of the folks go for the competency evaluation to the state hospital, or is it mostly in the community or in an incarcerated setting. So, you know, add confusion. No, you didn't add confusion I'm trying to think there are times when someone will be evaluated in a community setting sometimes in a hospital, and sometimes at the Berlin facility. What I'm hesitating is we we've had situations where someone needs to be evaluated, and I'm thinking of a situation we had been in Brattleboro and Wyndham for instance, where the person was detained brought to the psychiatric hospital in Berlin for an evaluation. The preliminary evaluation done even when someone has to be detained is usually very, it's very quick it's it's, I don't I don't want to say it's in the nature of a screening but what they're trying to determine actually when they do a screening is whether or not the individual presents a danger to themselves or others and has to be detained. And if not, they can be released saying no this person can have the full evaluation for competency in the community. So your question specifically yes there were times when a person is transported to the hospital that doesn't necessarily mean they're going to be admitted to that hospital. And what has happened, if you remember I said a pre pandemic this is the process that changed dramatically because people, you know at the beginning of the pandemic and year ago in March. We're essentially closed but for emergency purposes. So these doctors that used to come to the courthouses for these evaluations no longer we're coming to the courthouses so we had to set up, essentially a telemedicine capability in to do this and I will tell you that we've struggled with that. And, well, just as a side issue I guess to complicate it there was a period of time until fairly recently, where the department of health had a real shortage of physicians able to do these exams so they're some other issues relating to this talk. To answer your question yes sometimes they will be transported. The problem with that was, they were transported all the way to Berlin hospital for an evaluation I'll say took an hour for the doctor to determine they did not have to be detained. Then the person was left in Berlin, and at least in Berlin and they might live in Brattleboro. So we tried to remedy that through working with the Department of Mental Health where we look to certain hospitals with in not every hospital in Vermont can conduct this evaluation. So we will direct people to those hospitals that have the ability to do it central Vermont hospital in Berlin is another one. And I think, Rotlin Springfield you through but then they I believe they stopped doing it I'm not sure what their status is now, but some of the smaller hospitals. For instance, up in the Northeast Kingdom and St. Johnsbury do not believe they have the ability or someone on staff to do these. So, sometimes they are sent to hospitals, because there's initial concern about whether or not they present a danger that they require to be detained in order to be evaluated. So, they have, they've then been determined to be incompetent to stand trial. So if that's been determined through the community evaluation. What happens to the person, what happens to that case. Again, let's take a low level offense where the person pled not guilty competency is raised, they're released into the community they have that community evaluation, and it determines that they are incompetent. We have to come back for a hearing on that but let's assume as a result of that hearing either by agreement, or after hearing the court determines incompetent. The next phase is what's called the hospitalization hearing that doesn't come at the same time as competency. It's another hearing where we determine at the hospitalization hearing does this person need to be hospitalized, or can they be released into the community on what's called an order of non hospitalization. And then you'll see the initials O&H referred to by probably other witnesses and some of the materials O&H meaning they're released. But in doing that, it now goes once they're determined to be incompetent. The focus shifts from punishment for the crime to treatment for the mental mental health issues. And so that hospitalization hearing can result in the person being placed in the custody of the Department of Mental Health under an order of non hospitalization meaning they remain in the community under an order of non hospitalization that calls for a treatment program for the individual in the community. The criminal case, as long as they are determined to be incompetent. I would say my experience was that on a finding of incompetency on these low level offenses. The charges normally be dismissed. And then no longer be in the criminal docket. It would be solely in the Department of Mental Health or that becomes a civil docket. And it's the future hearings are conducted in the family division, as opposed to the criminal division. Now I say that my experience has been that most of these low level offenses were dismissed. I learned over time that that's, I don't like to use the term cultural but it varies from county to county. Because it ultimately, it would be the prosecutor that normally dismisses the case or not. And without getting off into a side issue I found that's not consistent across county so in some counties you may find someone who's been found incompetent. So in the custody Department of Mental Health in the community receiving treatment under this court order, the criminal charges have not been dismissed but they are put on what's called an inactive status. And the question comes up, do other conditions of release apply but that's a whole whole separate issue that I don't think the committee wants to get into today but it is does raise a different issue but it said at that hospitalization hearing, where now we're going to go to the Department of Mental Health and the review for that comes within the family division, as opposed to the criminal to be. So that's that's how I would, and I just want to keep this real simple and real high level so that's how it would be resolved. There's a low, low level of fence, a community evaluation, deemed to be incompetent to stand trial the criminal charges would be dismissed, dependent on the state's attorney. Right. We changed over to the civil arena of the court which is really family court. What about the situation where there is deemed that there was a risk of flight, the person was detained and held in a correctional facility. It came back, everyone agreed, the person's incompetent to stand trial. Then happens. So, in those cases and again we're, we're talking about the most serious offenses where once they are, they still go through that process remember you have the competency hearing. Now this person is in still in the custody department of corrections. We have the competency hearing that determined either by again by agreement. Or by hearing with the court making a decision the person is deemed incompetent. We still go to the next phase that hospitalization hearing. But this person is still in custody of the Department of Corrections on a pre trial if you will detainee basis, either bail has been set, or they're held without bail. And then at that hospitalization hearing the issue then becomes do they present as a danger to themselves or others continue to present as a danger, and that the least restrictive order would be for them to be in the hospital in other words they need to hospitalize a setting in order to receive the treatment that is necessary for them. And those folks continue at that point if you find that to be the case. They continue, then to be in the custody of the Department of Mental Health, and in my experience lodged, if you will held detained hospitalized, I guess is actually the word I should be using hospitalized Berlin psychiatric center. They continue there for a period of whatever treatment is necessary that the big difference is that in many of those cases. The criminal case remains pending, because the issue, then is competency, and it may be through the course of treatment that the person is restored to competency. And the case comes back into court. I had experience in cases where someone in extremely serious case where they were detained, I determined that they were incompetent, they were ultimately placed in the custody of the Department of Mental Health. They were hospitalized at the Berlin Psychiatric Hospital. And I would say my recollection is it was probably a couple years later, but they actually came back to the court for a, another evaluation for competency and I don't remember the details because I had, I was no longer involved in the case but I know you asked how long can they remain in custody and this was at least for a couple years they came back for yet another competency evaluation. And again we're determined to be incompetent and sent back to the hospital so that that person was in the hospital for a long time but the case remained pending. I think that's what's important to remember in the criminal cases where they've been deemed to be a risk of flight or real threat. If they're released, they're housed in a correctional facility. Until they've, it's been deemed that they've been incompetent to stand trial and parties agree to that then they go to a hospitalization evaluation. And if that evaluation deems that they need to continue being hospitalized, they are then moved from the DOC correctional facility to the Berlin facility and then they're fully under the custody of the Commissioner and DMH. Right. They could stay at the Berlin facility for a very long time if they continue to be deemed incompetent to stand trial. Correct. And that's the short answer. The longer answer is you definitely want to hear from the Department of Health because the Berlin Psychiatric Hospital, of course, functions on a treatment protocol. And so the person has to only be in the hospital, but that requires a hospital setting for their treatment. And that's what keeps them in the Berlin psychiatric hospital. Because it's the, again, we're looking at the, what's referred to as the least restrictive setting for that particular individual, and it may be because of their high needs, the least restrictive setting is that is that hospital setting. Because they can continue in that, in that status for an indeterminate period of time. Because they continue. Remember that once that hospitalization hearing whether it's a order of hospitalization or order of non hospitalization there in the, the custody department of mental health, and the review comes within the family division, a periodic review of someone's status while they're in that, in that, in custody of the department. So I'm going to jump now. So with these folks, the folks who have been deemed incompetent to stand trial and need an order of hospitalization. I sent to Berlin for a length of time and I know DMH there's some requirements there that they have to meet and then would these be some with the folks under this determination. Be some of the folks we would see if we went down the road of having a forensic unit with these folks would go to a forensic unit versus the Berlin state hospital. And I, as I understand the nature of a forensic unit and I'll try to give you some information. The answer would be yes. Let me illustrate it this way, if I can. The year before the pandemic I was involved with the judges from I'll say half dozen six or eight states nationwide on this on this very issue. And so we were sitting around a table discussing the different procedures processes that each of these states had. Well it turns out I was the representative of the, of the rural state the small state that, you know, the, the, the, I referred to it as the country mouse as opposed to the city mouse. And it was pretty apparent I mean the rest of these judges were from major metropolitan areas Los Angeles Phoenix, Baltimore and so forth, and they have a process where if someone is determined to be incompetent and it varies a little so I don't want to over generalize essentially if someone is determined to be incompetent at the outset of proceeding. Some of these states had facilities where this person would go. And again, these are folks facing serious charges, they would go into what they called a forensic unit for essentially the treatment plan was restoring competency. In other words, treatment here to restoring competency so in that sense. And I think the conflict was. First of all, did they have the resources to have such a facility in other words something between if you will a pure correctional facility, where people in the custody department of corrections versus the hospital, which is departmental mental health, almost like an interim step where they continued and I believe in some cases they continued in the custody of the corrections and but they were getting mental health treatment to restore them to competency. The, the purpose of that was to bring them, they never really left the criminal system, if their competency was restored, they came back into the criminal system and faced whatever charges they were facing. So when we talk about a forensic unit and I, and really that's what section six is all about to understand when we use that term what are we really talking about. I think it, I don't think I'd be overstating it to say, I believe what the purpose of that committee is, is to look at this issue of, what does it mean to have a forensic unit and what are our needs what, what, what kind of what population would we be building to look at that for but it's, it's, it gets away from obviously we know that the corrections it's either there, you're either there as a detained person waiting for trial or you've been sent. And that's the function of the OC department of mental health is there in the hospital is specifically for treatment. And so this restoration of competency is the term that's often used is a mid level, you're still. You're still having one foot in the criminal justice system. And one foot in the mental health to try to restore competency. So, I'm not sure if we have another question because I saw Scott's hand up and then he put it down so I'm not sure Scott, you still have a question. I'm not sure if I'm, if I understand enough to ask her question this is pretty confusing. The question that I had was whether someone who is, who is evaluated so that they're determined not to be competent. And then they're evaluated for whether they need to be hospitalized. And if it's determined that they don't need to be hospitalized, but they still can't be released. Is that the kind of person who would be then referred to the secure residential facility that we're building. Or is that something else. I don't know. I think, I think really that's what we need to determine as we look at the type of facility we have what will what will that population be. I think we're asking where do they go now. Right. Yeah. Yeah, so so they don't need to be hospitalized, because the Berlin facility is actually is actually obviously is is is intensive programming. So if they don't need that, then then where do they go. Well, if, if they are incompetent, I assume that's the bottom line, but you're saying they don't need to be in the hospital. They would be in the community would be in the community. Well that actually goes back to another question that I had I think, I might have missed a turn here when, when, when the chair asked about a person is in the community they're evaluated for competence. They're in the community so that it's so they're. No, that's actually go to a person who's was detained because of a risk, risk of flight, so low level, low level crime, but they've been detained because there's a risk of flight, then they're evaluated for competence is determined that they're not competent. Then we go to that, then we go to that hospitalization hearing and determine what level of treatment is necessary. And it's determined that hospitalization is not necessary or is that not the kind of thing that would happen. Well that's what that's what the hospitalization hearing determines that they need to be hospitalized is there. Is there, you know, when we talk about risk of flight of course one of the factors that we take in the consideration is the nature and seriousness of the charge. So it may be that even though the person is being detained if they're found incompetent and then there is a need for hospitalization to treat them. Having in mind the circumstances that bring them to us, they would be detained in the hospital. So I guess I guess my question was, maybe there's very narrow possibility that a person is determined not to be need hospitalization, but they've been detained just because of risk of flight necessarily because of the seriousness of the crime. You know, they don't get released back to the community. No, but understand that if they are, if they're at the hospitalization stage and determine the hospital setting is not what they need or require because of their condition. They would be eligible for the order of non hospitalization in the community. And again, the, we'd have to decide what happens with that criminal case it may very well be that at that point, it's that's a very, that would have to be a very narrow. Yeah, population where where those factors meant to play as you've described it. Yeah, usually if someone is being detained. Because of the factors that we take into consideration to determine risk of flight. They're going to continue to be the team. Lots of decision points here. Okay. Thank you very much. So, and I think we have to remember that the order for hospitalization, or even non hospitalization, the key is to work with the person provide treatment to see if the person can become competent to stand try. That's the issue. It is and oftentimes when again in the low level cases where they've been involved with the department of mental health on a non hospitalization order, when they're restored to competency or or really the department. The department's goal isn't to restore competency. It's in the course of treatment that they may in fact be restored to competency but the department releases them from their order or appropriate for discharge. When they no longer need that the treatment that the department provides so oftentimes those folks will never come back to the criminal justice system, and they'll be released into the community. Without any any limitations, either from the department of mental health, or, or the court or the department of corrections. So we have a couple more questions now we're only dealing with competency to stand trial we haven't even talked about insanity at the time, insane at the time of the crime. Right. So that's a whole different arrangement. And I want to get to that. So, current and then Karen. Yeah, you you've made this kind of sound at least a little bit black and white. There must be. There must be some disagreement I mean some people say yeah he's one of the psychiatric unit says this person is competent we've treated them and do you see or somebody else says no they're not competent as you have prosecutors and defenders getting hurt. Oh no, the whole system is. When I talk about, for instance the first stage the competency hearing. The person is represented at that stage by the public defender usually signed council, or their right to private council of course, and the state is represented by the state's state's attorney. So the next phase assuming they go to the next phase of a hospitalization hearing. They continue to be represented by the state's attorney and the public defender, there is a bill probably earlier in this bill that I think of it under S3 where they're now going to assign an attorney from the legal aid has a division that deal with individuals, mental health division. They are the attorneys that we normally see in the civil, the family division, in other words when we're reviewing cases that are people are in the custody department of the health, they have an expertise that gives itself to treatment and treatment options, whereas the public defender doesn't necessarily have that same background so part of this bill includes a provision to allow those specially trained attorneys to come in at the hospitalization stage, because I was saying earlier it now changes the focus from punishment to treatment. And so these folks have attorneys are representing them, not only in in the criminal division. As a result of charges being filed but when they're in the family division review when they're in department of health custody. The state is represented by Attorney General representatives from the Attorney General's office, and the individuals are represented oftentimes by representatives from legal aid. In their mental health division. So they have attorneys throughout the process, and there isn't always I mean that's why even the hospitalization hearings. I mean, there are oftentimes competing doctors opinions on competency. So it comes if you will a contested hearing where the court judge has to decide whether there's sufficient evidence to to find the person. I mean the court can find that they are competent that may be the issue in the court may find the person is competent and then they, if they're in the custody department of the DOC, they'll remain in custody until the case is heard. I don't want it to sound that there's really nothing black and white about it I may have oversimplified the process but no the issues can become very complicated in terms of what level of care this person needs, whether they're in fact competent or not. Okay, so the ultimate the ultimate decision comes from the court as to whether they're competent or not or does. Okay, all right, thank you in either venue in other words when it's part of the criminal process. And then in the, when it, if they remain in the custody department of health, those cases are reviewed by the judges in the family division. So they ultimately make, we ultimately make the decision, whether to continue someone in custody the department of health or or release them. So we have another question, judge and then I want to move on to insane at the time of the crime. Okay, I want to keep this really high level, because we just need to understand the pass into a forensic unit. I'm trying to get up here. Karen. Yes, I think that this question has a stay at that level but it doesn't we can just skip over it, but I'm following all these different forks of where people go. So thinking of somebody who is being kept on DOC custody because there's a flight risk risk. Yes. And then they're determined incompetent, but not, they don't need to be hospitalized. Could that person then be returned to one of our correctional facilities. So they're incompetent in a correctional facility. No, if we've determined they're incompetent, and then then as I said before it becomes an issue of hospitalization. So if someone is incompetent and they're in custody department of corrections, it would be an extremely rare case where someone would then be that the level of treatment necessary can be conducted in the community. I'm not saying it can happen, but it'd be very rare case. That's my experience. And that's what I would expect. I just wanted to confirm. Thank you. And keep in mind these are individualistic decisions. I mean the, the persons. Both criminal and medical is comes into play. So is it always the case if a person is held in DOC for criminal offense and the evaluation determines that they're incompetent and they need the hospitalization piece. They would be transferred to the Berlin facility. Would there be cases where they would be deemed not needing the hospitalization case treatment? Is there a situation where someone is being held in a DOC facility? I think this is where Scott and Karen are going. They're held in a DOC facility. It's a criminal charge felony, whatever. They're been deemed to be incompetent to stand trial, but they're not having a hospitalization order for their treatment. Does that ever occur? And if so, then where is the person housed? You two were getting at Karen and Scott. Yeah. And I can't think of the situation, at least in my experience where that has happened. I'm not saying it can't, but if you keep in mind that the person is being detained originally, that determination has been made. And as I said before, all the factors that go into determining risk of flight, some of which is the nature and seriousness of the offense, and they're determined to be incompetent. That issue of where can they, what's the least restrictive setting for treatment. The issue then becomes, I can't imagine circumstances where they would not be in the hospital to receive that treatment. Because the department can't provide the medical treatment that's necessary. So we're going to leave it at that point because that's an easy point to understand it gets complicated within the Department of Mental Health after that, but we're going to leave it right there. Now let's move to the person has been deemed to be insane at the time of the crime, which is different. And being competent to stand trial. So what happens in a scenario where someone has insane at the time of the crime, what's that whole process, not in too much detail but at least to give us a sense. There may be at again at the beginning of this process at the rule five arraignment proceeding question not only of the person's competency but of their sanity can be raised again by any party, and that can be part of the evaluation. One of the discussions going on. As part of I think again I think it's part of this bill I don't have the bill right in front of me talks about whether if someone's found incompetent should they then continue continue the evaluation for sanity at that point or do they wait until they're restored to competency and then have an evaluation for that. Let's put that aside. You have to remember that insanity at the time of the, the offense is what is referred to as as an affirmative defense on the part of the defendant. Found under in the criminal rules 12.1 and the caption for that particular rule is notice of alibi insanity or expert testimony. The determination of whether or not the individual raises that issue of insanity time of the offense is unique to the defendant, they have to raise that issue. And so you could have a determination. That someone is competent. And there may be opinions at that time that the person was insane at the time of the offense. But that is ultimately has to be raised by the defense. Assert that as an affirmative defense to the charge, whatever it is. And then if not resolved otherwise, that's an issue to be determined by the, by the jury. There are some situations where based on the available medical evidence that the person has. There's an agreement, if you will, that the person wasn't saying at the time of the offense. So it can still becomes do they require hospitalization or can they be treated in the community. So it can still lead to the same issue the difficult cases are. If someone is found competent in the. They have to make the determination to raise the issue of insanity at the time of the offense. If that's the status at the beginning of the case, then that has to be played out in the course of either a trial or other resolution. So, if it's been determined that the person was the insanity plea is substantiated, and the person was insane at the time of the crime. And that they're incompetent to stand trial. No, it does not. No matter fact they would have to be competent in order to raise the plea to raise the defense because it's an affirmative defense. So they would, if they were deemed insane at the time of the crime, they would still be going through the court procedure to be a jury trial. And what if it's deemed that the person was insane at the time of the crime. They have a sentence that they have to fulfill it do see or what what happens. If they're found not guilty by reason of insanity department of corrections is no longer involved question becomes whether they continue to require treatment. And then they. So if they do continue to read choir treatment is that a hospitalized setting or non hospitalized depends what their status in part what their status has been leading up to the trial. So if they needed hospitalization. Would they go to our state hospital. If if they needed hospitalization that's the really the only place they could go. Would any of those folks go to a forensic unit. You know, again, I'm how a forensic unit is going to be utilized is what the study committee is all about. I'm not. I'm not sure. I wouldn't want to have it. I'm involved. Well, you notice I wasn't in the group that they included there so I don't know to what extent those the use of a forensic unit has been discussed among the people that are involved in already listed in the bill. And what the plans there so I would hesitate to offer what I what I think they have in mind. Keep in mind the the the use of that defenses in my experience is extremely rare. The one about. Yeah, and and and even when used being successful is no doubt even rare. I don't have numbers for you. I know there have been some cases over the last couple of years that have gendered a significant amount of publicity and I don't know enough about those cases to even begin to offer any any thoughts about those but I guess what I'm saying is it's it's because it's an affirmative defense that has to be raised by the defendant. The case has to go to trial for that. Not guilty by reason of insanity. Or insanity at the time of the fence. It's just rarely used in. In my experience, even less successful. But it comes down to you know the the opinions of the experts. That issue. So we have a question from the committee Scott. If I understand what you're saying, judge, it sounds like an insanity offense would be either either affirmed by a jury at trial. Or it would be accepted by by a judge in a plea agreement. It could be you know those are. I know that there have been some that have resulted in that. That solution but it's again it's a pretty rare area. And in that in those situations it would have to be extremely compelling. Evidence for all the parties to agree that that's that's the result. And oftentimes those agreements result in an agreement not only that. The person is not not guilty of the offense for that reason, but it ends up in a period of someone being in the custody of the department of health, perhaps in the community. So again, those are very rare situations, but. They do occur. I would imagine that. Of the very few cases that actually go to trial. Cases that involve an assertion of. Not guilty by reason of insanity. That's successful that those those cases would be a higher proportion of those would have would have been ones that went to trial. Yes. Okay, thank you. I'm also saying judge in Vermont it's very, very rare that someone is deemed not guilty by reason of insanity. Is that correct? That's been my experience now. You may have other witnesses come in and say. Otherwise, but I mean. Because the languages before us in section six is to really look at a system. To really coordinate treatments for individuals who are incompetent to stand trial or have been adjudicated not guilty by reason of insanity. So what I'm hearing is in Vermont. Most of the cases would be folks incompetent to stand trial. But that would, that would be my. You know, I'm. I'm not complaining, but that would, that would, that would be my experience. I mean, most of the situations that I have dealt with personally over the years and I don't mean that that's a benchmark for any. Committee decision is this issue of competency. And oftentimes we will have evaluations for sanity. And as I said, there are times when the doctors. Termin right up front that the person. There's insanity because there's a history of mental illness. Of long standing. As opposed to insanity at the time of the offense. And so there are. Even. Insanity is. Has to be supported by medical. But most of the. Situations we deal with. Involve the questions of competency. So I'm just laying this out for the committee. So you can have a con some context here when we start really looking at. The language. So Karen. Yes. I'm kind of figuring out my question as I'm saying it. Like I'm trying to process all of this. You know, with the goals that. You know, you know, you know, you know, you know, you know, you know, you know, with safety, we want to. You know, make sure folks are taking responsibility. We also want to make sure that folks who potentially have. Mental illness have access to treatment. And so I'm just trying to understand. Are there. Incentive. Like. Is it. Incentivize to not. You know, like I'm trying to think as you're saying it, you need to be competent in order to say that you are. We're insane at the time of the incident. So is that actually disincentivizing people from like saying, Hey, I need help. I'm not. You know what? You know what I'm trying to say, like. It's the legal pieces of it. Are we actually working within a system that. I'm not wording this correctly, but I, I just am worried people. Aren't potentially getting the services that they need because. They're trying to look out for their best interest. I don't think we're incentivizing them. I mean, when you're obviously, when you're dealing with. Mental health issues, they're, they're complicated issues. And. You know, I wish I had a better answer for you to that question, but I just don't feel that. That incentivizing. Is part of the. Part of the process. There are some very difficult cases where. People resist. Treatment. But oftentimes those are cases where they have a longstanding history. They cycle in and out of our systems. In other words, it's not uncommon. To find someone who. Has been charged with low level offenses, for instance, comes into the system, receives treatment through the department mental health is released back into the community. And, and they sometimes cycle through this. Period where they are doing well in the community and then. They start to deteriorate. And oftentimes that leads again to. Involvement with a criminal system in the process. Repeats itself. So that's why I'm saying, and when you're talking about these issues. You really have to focus in on the, on the population that you're talking about, because. You know, the, the, the. If you will, the high publicity, high profile cases, certainly get everyone's attention. But usually we're dealing. In those, obviously there's no question they're serious and they require everyone's attention, not only for public safety. About mental health, but. Those cases are. I would, what's the population at the hospital? I think they're about 25. 25 in Berlin. Yeah. That's, that's not a very. Not a very high number. And I don't know what their vacancy is there. I don't think it's. That's why I think the, the. The forensic unit, you really have to look at what, what population you expect. That that. System. Obviously in the, in. Mentioning the, the states that I was dealing with. Get extremely high numbers. I mean. Of a population in the high numbers. For people that need those services. Much, much higher than our. We were. The only state that went from, as I recall it, that went from a purely criminal. To civil. In other words, if the person was found incompetent and needed treatment, we put it into a civil system. They didn't. They kept them in the criminal justice system. And I don't know what this forensic unit that they're talking about. I don't know what the vision is for that. And that's what will be interesting. That's the goal of the study. Committee to figure out what vision is. And then my question is. Judge. What would having a forensic unit. How would that play out. In your world. Knowing that there was a forensic unit. And what would. Again, we've got to go back to. Who would be house there. Right. But what would that do in the. In the future? In the future. Right. But what would that do in the, in your world. Judicial world. If we had a forensic unit. Any thoughts. Too soon to figure that one out. It's probably too soon. But when you have another. If you will option. Then it's a question of where that option comes into play. In other words. Do we still go through. I would think we would still have the process of determining. Competency. And then we get to the hospitalization stage. Then it's maybe a determination of. Where this person. Will go. It may be that. It may be that if this unit is viewed as. In the phrase I used before. If the purpose is for restoring competency. Then that may in fact be a different level of treatment than someone would. Get at the Berlin hospital. Because the Berlin hospital is not a detention facility, even though it's a locked facility. It is. It is designed for treatment. And perhaps long-term treatment, depending on the person's needs in the forensic unit. I would expect. That it's viewed as a shorter term. Stay. For the purpose of restoring competency. At least that's. That's. My understanding from. The sessions I've been in with. The other judges as opposed to this group. So. The impact on us would be. It may be. Us determining what level of care this person needs. And what the goal is. So. I think this is where the rub is. And I don't know. But I have a hunch. The rub is someone has been deemed. To be incompetent to stand trial. And they really should be housed somewhere. Because they've also been deemed a risk to the community. Where are they housed? And we're going to hear this from. When we have them in. Once they have some requirements within. Within the mental health world. Of how long they can hold someone. Stabilize them. And the issue could be that they. Would need to release someone. That's incompetent to stand trial. And the. Looks not notified of that. Mental health. So I think that's where you get into the layers. In terms of folks who are incompetent to stand trial. Because some folks may continue to be incompetent to stand trial. Even though they've completed the treatment programs. But they still will be deemed incompetent to stand trial. And the question then is. If. Then the outcry comes out that they should have been housed somewhere. Not released. And will you be used for that? Alice, you're freezing up a little bit. I think I picked up the threat of it. And that will be. That will be the question. Of. Exactly. What this facility will be designed for. And what population it's designed for. And whether it will be a hybrid of. Corrections and department of mental health. Or one of the other. And as I said, I haven't been in those discussions. And I know I froze up, but the issue is that sometimes the folks have been hospitalized. DMH has reached their limit. You know, the time that they can be hospitalized and they're released. But they're still incompetent to stand trial. That's the crux of the issue, I believe, with the forensic unit. So we have a question. And then I, I'd like to move on. We have some other folks here. So I'd like to move on as well, but we do have another question. Judge. A stop. Yes, thanks. So I guess. I'm wondering where this. Forensic unit might be housed. Who's in charge. That's part of the study. I actually mentioned there, but I guess, I guess it would have to be part of the study. It is. It's to look at where they would place it. That's not only where, but, you know, is it going to be DOC maintained or department of mental health or some combination. Or. Right. Or some other. Perhaps. That's part of the goal. That's part of the language. It's there for the study committee. And I skimmed over several times. Okay. Thanks. Chair. And it's the only thing I would add to my comments. And I know you've got other witnesses. You know, I would ask you to, you know, look to obviously the department of mental health. The defendant general. States attorneys. When I was talking earlier about insanity at the time of the. The fence. I just, I haven't seen that. And they may have a better sense of the frequency with which that. Comes up. But I. That's, I just wanted the committee to be aware that's, that's been my experience. And there's maybe different. That may be a good segue into going to our defender general. Next. And then do the medical piece. After that. Anything else. Judge Grosin. I think this has been very, very helpful. I just wanted to lay the. The pass. In terms of. In terms of. In terms of. In terms of. In terms of. I just wanted to lay the. The pass. In terms of what's term forensic. Because this is all new to committee members. It's a new world. It's DOC, but it's a little bit beyond that. So I'd like to transition to our defender general, if possible. Thank you. Thank you. Thank you. So Matt, welcome. Thank you for having me. I've been listening. Yes, you've heard the gist. So I'm just going to open it up. If we do, we are looking at section six there. Senate bill three, just to weigh in and. And help house judiciary. This is your notice is all new to us in terms of the forensic world. So any, any questions that will help us understand a little bit further would be greatly appreciated. Well, so thank you. Yeah, no, no problem as to. As to section six. You know, I don't have. Really a lot to comment on. Regarding it. It is, you know, it's obviously a study to see what. See what we do to people. You know, you know, you're with people who are in the. Right into the criminal justice system. But at one level or another have mental illness. That causes people to be concerned about public safety. You know, that's in the most general terms. And some of the discussion you've had with. Good. I think I can add. Fill in some blanks. I want to talk about sanity first though. Sanity as a defense is something that can only be elected. By the defendant. If. A lawyer believes the client is insane, but the client has been found competent to stand trial. But the lawyer thinks that they were insane at the time. And the lawyer does not have an ability to pursue a sanity defense without the consent. Of the defendant. Right. And. You have people who are. Mentally ill and sometimes seriously mentally ill. Who are nonetheless being competent to stand trial. Very difficult people to deal with. Because they are very difficult to reason with, but the standard for being. Confident. In the criminal in the criminal justice system is so low. That you get all kinds of individuals who have. Serious mental illness. Who are still being competent to stand trial. Many of those folks do not want to be found insane. At the time of the offense. And they don't want to be. In the criminal justice system. In the criminal justice system. Right into the. Mental health system. They would rather. Be with whatever consequences arise out of the criminal justice system. Then the mental health system. For those cases that have been. Bride. As it's with insanity defenses before a jury. I surveyed. I've been I've been doing this about 32 years. I've been a lawyer and I have. I've actually tried a sanity defense. Case. And at the time I did it over the objection of the client. The client was thoroughly psychotic. But also. Had been deemed at the time competent to stand trial. So he was literally reacting to dilutions. In the courtroom. While we were having the. While we were having the trial. We had a lot of hallucinations. Hearing things that weren't there. And he had to be. Handcuffed. And in foot behind. A. U shaped table. So the jury allegedly couldn't see him. Being handcuffed. It was. The U shaped table had black raping around it. So that you couldn't see his hands or feet. Of course you could hear. The whole time. Throughout the. This can date trial. And he would, you know. Shout at the clock and tell people to. You know. Talk about the devil coming into the courtroom and. All kinds of things. But. The standards that was being applied. At least prior to this trial. Is the same one that we have today. Did he understand. That he was at a trial. Yes. Did he know who I was. Yes. Did he know who the judge was. Yes. Did he. Did he understand, you know what he was being charged with. Yes, he did. All at the same time experiencing delusions of hallucinations and the like. During his trial. He would be brought in and out of the courtroom at times they had set up so that. He could watch the trial from a room outside the courtroom if he wanted to on a. On a television with. Sound to it. Now, in that case. There were numerous competency evaluations that went on as well. Both pre-trial. Or during the trial. And this was the first case that. That. When it went up, he was ultimately convicted. Despite the insanity defense that I put on. And. When the case went up to the Supreme court on appeal and the. Supreme court in that case. State versus being Ronald Bean was the case. Founds that. The court and. Defense counsel being me aired. In pursuing an insanity defense over the objection. Of the client because if the client and also that the court. Aired. In. Not allowing the client to proceed to represent himself. If he had been found competent. To stand. So once you found competent to stand trial. You get to make the choices that all. In one of. Not to raise a sanity defense. And the others to represent yourself. So the case ended. Reversed and came back. And ultimately the court. Found him to be incompetent. And then we went through the. Hospitalization hearing. Received is that the judge. I talked about. The keys that I think you need to know about sanity. And this is where I was starting to go with this. I've tried a couple of cases that were sanity related. And usually they are. A last line of defense. And the reason is because nobody who I have surveyed. People have practiced for 50 years or more. And remember a case where a jury. Found somebody not guilty by reason of insanity. And this is evidenced by. What happened to me after that case was over. We've tried the case for 10 days. Including jury draw. And. I figured the jury would be out some number of hours, maybe even overnight, they would come back the next day. So I got my car and. Went through a drive through to get some food to wait. See what the jury was going to do. While I was in the drive through. I got a call on my cell phone and said, Hey, the jury is back with a verdict. So I drove back and the jury found him guilty of everything. And he was charged with all kinds of heinous stuff. You know, kidnapping. Aggravated domestic assault on his mother. Attempted murder. And some number of other things. In any event. So they didn't, they, they, the jury was out literally. No more than 15 minutes when they came back with a guilty verdict. They said, Hey, I'm sorry, I'm sorry, I'm sorry, I'm sorry. I'm sorry, I'm sorry, I'm sorry, I'm sorry, I'm sorry, I'm sorry. About two weeks later, I was walking down the street in Rutland and one of the jurors who happened to come up to me and start me on the street. And he said, Matt, you did a really good job with that case. I said, well, these didn't feel that good because you guys were out about 10 minutes before you came back with a guilty verdict. He said, yeah, that guy was crazy. We were never going to let him out. Well, that's really what. That's really what I'm talking about. I'm talking about an insanity defense in a serious case. People are afraid. And they don't really understand the consequences of what. An insanity. Verdict would, would render. And so in surveying 450 lawyers on the defender generals. In the last 50 years that I've served, nobody could tell me in the last 50 years that there'd ever been a verdict. By a jury that found somebody in, not guilty by reason of insanity. So the only time this really arises. Is if you have a court trial. Where the evidence is really unrebutted. That the individual was insane at the time. Or the prosecutor and the defense. The judge will eventually, from the state of the evidence. Agree. That the appropriate resolution is that the person was insane at the time. And then you move to the issue of hospitalization or non hospitalization. So. The, it is not. It is not. releasing people as a result of of trials and the like. It is rarely used because it never wins. And about the only time it does get used as a sanity type defense is by agreement with the state's attorney or when there is unrebudded evidence from an expert, usually it arises out of the competency evaluation at this point. And then it's, you know, maybe confirmed by a defense expert later, but defense won't even raise it unless it's first brought up by the competency evaluation. So it's really a very small relative number of cases. And it's really not a legitimate thing. You know, it's not a legitimate defense to raise. It is not a successful defense to raise, at least in the last 50 years in front of a jury, as far as I could tell. And I specifically looked to some lawyers, you know, I've been at it a long time, but you know, there are people there longer than me doing this. And, you know, the Richard Rubens of the world in Washington County and Jim Murdoch and people out in Chittenden County who have been practicing a lot for 50 years or thereabouts, they couldn't tell me any cases that were a jury came back with a not guilty by reason of insanity. So that's the kind of a small portion of these cases. The vast majority of cases are the ones that are the competency cases that Judge Pearson did a good job of laying out what happens with them. The Vermont is unique in the way that it handles its mentally ill individuals who come in contact with the criminal justice system one way or the other. Prior to coming to Vermont in the late 80s, I was in Massachusetts and they have basically, well, they had, they had to, at the time it was a Bridgewater State Hospital, but it was, they, it's been renamed, but the bottom line is it was a lock up for the criminally insane. And it was, I don't know if you've ever been to a place like that. I have and it is not cool. It is a very depressing, very dangerous, very difficult place to be because you see people who are in found distress as a result of their mental illness locked up with the federal requirement that they only be there for purposes of treatment where, you know, my experience has been there was very little treatment going on and they were effectively being housed to keep them out of the public. Vermont goes a different route and has traditionally worked by to try to give people treatment and there are individuals who have been subject to either competence or sanity hospitalizations who have never been convicted of crimes. But yet remained hospitalized. If you remember in the late 80s, there was the Elizabeth T. Case from Bennington who went in and shot up the battery factory down there and killed some individuals and she remains in the custody of the Department of Mental Health and locked up and received treatment during my years as Defender General. I've received some number of calls from her saying, you know, get me out of here. Of course, she is subject to mental health, the Department of Mental Health. It's not what we are doing at this point. At that point in the case anyway. And, you know, they are individuals who get better and do well and then they relapse. Because that's the nature of their mental illness. It lacks us in ways and when they're doing well, they are fine and when they're not, they're not fine. And hopefully, you know, whoever has been treating them gets an understanding of them so that they know when things are going sideways and intervene with some treatment. But it's a very difficult line to try to figure out where it is with some folks because most of them don't really want, they don't want to be perceived as mentally ill. And it is a, it is a, you know, it's a difficult thing to deal with, obviously. And when things go really bad, sometimes, you know, people would rather err on the side of public safety than the treatment that the folks are entitled to under the law. So I do see a hand. So yeah, so let's shift over to questions here. So Sarah. Thank you. Thank you, Matt, for being here. You know, I don't want to get ahead. I know this is a work set, this, this legislation sets up a working group, but I'd be curious to hear your thoughts on whether you think our current system is failing defendants who fall into this category. Are they, are they, are they stuck with no place to go? Are they, do they get stuck and with, with our current system? You know, we're, this session, we're talking a lot about mental health facilities and this, this rate, I have a number of questions. So I'm just curious, I know you don't have the benefit of doing the being, you know, this working group will do the work, but I'm just curious what your thoughts are. Well, I'm, I'm in, I don't think that the system is failing for the most part. But I'm also mindful of the fact that there is no 100% safe system. So when the next bad thing that is going to happen is going to happen, whether we have a bridge wider state hospital where we lock everybody up and, and, and they never get out, or we have a system like we have in Vermont where some people get out and do, do bad things. I think that Vermont is always resource challenged when it comes to these kind of things. We don't have the infrastructure that other states have or the ability at least to my knowledge to be able to create the infrastructure that we need to deal with the unique individuals. And in Vermont, we're probably only talking about a handful of people, you know, five, six, probably less than 10 who might fit into a category where they just need to be perpetually kept in a hospital and receiving some sort of treatment. So, you know, I mean, our entire state is not really the size of Boston. So when you, when you think about that, there's going to be a lot more people and a lot more opportunity to run across folks with these types of problems. I have, by the way, for a long time supported the post either sanity or incompetency determinations and the hospitalization, the actual hospitalization non-hospitalization hearings being handled by Legal Aid. We have talked about it for a number of years and they do a better job, we do a fine job of getting the facts out there about the person's sanity at the time or their competence to stand trial. We are not as first in what should happen next. And that Legal Aid unit that deals with mental health cases is expert in that and it is an appropriate thing to do in this bill. And it's something we've supported for a number of years and just has never really bubbled up into legislation. We actually, I actually think either two or four years ago it came up before and the bill died somewhere. But, you know, that is, that's going to be an improvement. I think ultimately we're to get to be the best that we could be in Vermont. We're going to need to have some sort of physical infrastructure to address even if it is that, you know, kind of less people who would qualify under this category of, you know, being perpetually dangerous as a result of their major mental illness. And so, you know, will that mean that we won't have incidents of mentally ill people who kill people or hurt people? No, that won't do that. Because the, you know, some of the folks and I, I don't want to comment too much on cases that are still pending, but, you know, we have individuals who come into the state from out of state who've left, you know, they've left facilities in other states, moved to Vermont, and then things happen. They aren't, they aren't known to us. And they end up in our, in our justice system, just as our people go somewhere else and they do things too. But, you know, one of the things I have to be most mindful of is something that I remember Doug Racine when he was the AHS secretary said in the wake of the floods was that we do, at that point, because we had no place else to put them, house some number of mentally ill people in the fractional centers who couldn't be there, but we don't have any place else to put them. And that is the concern that I have to deal with, because we have the prisoner's rights office in my office. And we need to make sure that those people are getting what they need as well. The issue of whether you are criminally liable is something that happens at the beginning. If you end up in a facility and you have a major mental illness or a, what has been determined as serious functional impairment, which is a, doesn't quite qualify for major mental illness, but makes you untenable to deal with, you know, in a fractional facility, they run afoul of things very easily and cause a lot of mayhem. But we have to deal with those folks as well. And so I'm, my concern is going to be to make sure that those individuals, their mental health concerns are dealt with as well as those who are, have been adjudicated, incompetent or insane. That was a really long answer. Great. Thank you. Are there other questions with the Defender General? I don't see any, so anything else, Matt? No, I don't think so. I do think so that you should keep in mind what I said first about spannity. Spannity is not the biggest issue here. The biggest issue is what happens after somebody is adjudicated incompetent or on the rare occasion that somebody is found insane at the time. It's, it's what happens next that is important, not the process of adjudication. I think you have to, and this is, this is the hard part. You've got to separate the act of whatever went on from the culpability for the act, because if somebody is mentally ill and incompetent or insane, they are not responsible legally for what they did, and it's our responsibility to treat them. So, you know, one of the things that comes up all the time is that mentally ill people are not being held accountable for what they've done. That is because they are not accountable for what they have done as a result of their illness. If you don't get your head around that concept, then none of this makes any sense. But you have to look at the mental illness as what it is, I think, on illness, and then figure out how do we make sure these people are treated so that they don't hurt somebody else in the future. So, that's what I'd like to close with. Thank you, Matt. Thank you. We've been at this for about an hour and a half now. I'd like to take a break. I think then I know we have some folks who have been waiting, and the folks are more from the medical end. We've got the hospital association with Devin Green, and then Jill Sudhoff from the Medical Society. What I'd like to do, folks, is really take a break and then come back with both of you. And I'm not sure which one should start first, if it should be you, Devin or Jill. Maybe you can think about that during the break. Are you either one of you on a time schedule here? Devin is. I was going to say Devin can go first. Okay. Yeah, I have a meeting at four. At what time? Devin? At four. So, let's take a 10-minute break. Okay. Does that work for you? Okay. Let's take a 10-minute break.