 Okay. Good morning. This is Senate Judiciary Thursday, March 11, 2021, and we are taking up S3 and actually in the competency to stand trial and sanity as a defense. Many of us have had problems logging in this morning, so I hope you understand we're getting starting a little bit late. It is not due to heels being made in the back room. It's due to technical difficulties. So, I was among those with frozen out. So, Pepper or David, do you want to start with work that you did with the Department of Mental Health to break a log jam? Well, yeah, sure. For the record, James Pepper, Department of State, Attorney's and Sheriff's, just picking out from where we left off yesterday, I just wanted to apologize to the Department of Mental Health and to the committee that we didn't invite them in in our initial conversations. I think they were broadly supportive of some of the changes they just needed to kind of review and make some amendments to the language. But I think that conceptually, we were, we ended up being on the same page. And, you know, we met yesterday for about an hour or so and came up, had some subsequent conversations and came up with an amendment, which is posted on the website. It amends the draft 1.1 that we reviewed yesterday. So, and it really kind of amends section three, subsection C2 and about notice and to the state's attorneys and to victims. And maybe, David, I might hand it over to you to walk through. And can we have it on the in front of us? Can we have it on the screen? Is that possible? If I can, I can pull it up. If that would be helpful. If that's okay with Senator Sears. Fine with me, Senator. We just need your cohost, Eric. Thanks, Peggy. There you go. All right. Thank you, Eric and for the record, David, share the general's office. And I want to echo peppers, attorney peppers, both apologies and appreciation for work with rapid work with the department over the last day. So we there's actually not a huge number of textual changes here, but there are a few key ones. And in part, some of these changes are to address HIPAA concerns, which I can speak to in broad generalities. But if there are specific questions on that, I would turn it over to representatives from the department. The first change before you start, David, I want to take this opportunity. I think I already took the blame. I might will continue to take the blame for not having shared the document before it was on the website. So, you know, you guys didn't it was my responsibility to make sure the Department of Mental Health and other members of the committee I was in the midst of working on it. And I'm not offering any. It's my responsibility as chair of the committee to make sure. So I appreciate the fact that you, you had never went to work with the Department of Mental Health. Break broker a deal, but you don't have to take responsibility. That really was mine. Well, thank you, Senator. So we're looking at to a here. What is now to a again? You're the committee will remember previously this laid out a list of offenses for which notice would be granted. And then the initial change that I should say the initial change from last year's bill was that there would be no restricted list notice would go out for all offenses. And after discussing things with the department, we came to this conclusion, which is notice is still could go out for basically any offense with a couple caveats that it would happen the the notice provisions would apply when somebody has been found not guilty by reason of insanity or if somebody is found incompetent to stand trial and the person's criminal case has not been dismissed. So in those instances where somebody's been found incompetent and a state's attorney or the attorney general were to dismiss the case, which currently does happen at times. These notice provisions would not continue in part because at least going forward, I think the understanding will be that if a case has been dismissed, it means that there are not the sort of ongoing public safety concerns that would animate the need for the desire to have notice going out to the prosecutors. If you know, if the case stays open, that's a signal that there is these public safety concerns and it will also that also helps address some of the HIPAA concerns around making sure that information is being shared only in those circumstances when it's necessary for public safety issues. May I ask a question here about provided the person's criminal case has not been dismissed? Sure. We have the cases in Chittenden County at a fairly high profile where someone's case was dismissed by the state's attorney in Chittenden County. And then the attorney general's office decided to work in consultation, I guess, when the governor decided to prosecute the case. What does that do to this? What does this do to that? I'm sorry. I mean, if there is an ongoing case, then notice will be provided. So once the case restarted under the ages of the attorney general's office, that, you know, this were to have been the if this were the law, and that happened again, then notice would be given to the attorney general as the prosecuting officer. When you say that the case has not been dismissed, I think it's probably misleading to suggest that the person no longer dangers the case. Well, so and again, this will require as many cases do serious decisions to be made by prosecuting officials about what needs to be tracked and what doesn't. And I think that's the case now, and that'll continue to be the case in terms of the gravity of these decisions. It's also important to remember that there is a category of cases that are essentially very are very often low level misdemeanors, disorderly conducts and so forth, where somebody is found incompetent to stand trial. And it may be a very reasonable decision for a state's attorney to say, well, this person is not competent. This is very this is low level, the disturbing behavior, low level behavior that is annoying quality of life type of crimes, but that it's really not appropriate or necessary to keep the criminal system involved and to let the order of non hospitalization, whatever might result from the finding of non competence to proceed without the criminal system staying involved. So you don't remember the town knows the town in the northeast kingdom where people were constantly heard trumpets. The guy would blow play as trumpet noise. Yeah, that type of case you're thinking of. It says things like that. Yeah, noise in an apartment building, things like that. And and so this really tries to get at both or attempts to provide an avenue to address both of those where there's some where it's perfectly appropriate to let it exit the criminal system entirely. And others where prosecutors really need to have eyes on what's happening for public safety reasons. And and this allows them to make those decisions and to retain that notice in cases where that's necessary. Yeah, Alice. So this Senator Nick. No problem. So basically this is the state's attorney will be in the driver's seat as to determine this section. Is that true? They'll totally be on their own to determine this. I think that that's fair to say that they will have their decisions going to be key as to whether they get notice on these cases after there's a finding of incompetence. They can choose to retain notice simply by keeping the case open, or they can choose to no longer get noticed by dismissing the case. And that will be in their wheelhouse. Okay. Okay. Thanks. Most of the rest of the changes, if there are no more questions on that, I'll keep on keep on going. A lot of the blue changes, sorry, the changes are in blue, and most of them are numbering changes, as you'll see. We go down to what is now capital C1, CI, or the next substantive changes. And the first change in blue here you'll see is really a clarification and making sure the intent is captured by the language of the provision. Before this was added, it could have been read that somebody was committed under this section and also was subject to a non-hospitalization order, but that non-hospitalization order had not happened as a result of their commitment under this section. In other words, it had been something else was going on that resulted in non-hospitalization orders. So we're clarifying that what we're talking about here is non-hospitalization orders that issue as a result of criminal involvement and they fall under this section. So it's really a drafting issue, not really a substantive issue, I think, just capturing the original intent more clearly. The next big change is at the bottom here, eliminating the provision that the court could proceed under 7618B, which is a provision that allows for a court to reconsider an order of non-hospitalization and to either alter that order or to change it to an order of hospitalization potentially. It's important to remember that people subject to an order of non-hospitalization for people subject to an order of non-hospitalization 7618B remains in the law. So such a second look could still continue. This just means that's going to clearly be happening on the family court side, not on the criminal court side. You know, this result after speaking with the department was a result was a balancing of serious concerns around making sure that purely treatment decisions are being handled in accordance with clinical eye to them and not having criminal courts engaging too heavily on what are purely clinical decision making. But we're also trying to balance that by retaining the notice provision so state attorney still or the Attorney General's office will still be getting notice if there are issues. And we think this is both the department and our offices think this is a reasonable compromise. Try to balance those two policy concerns and a reasonable way to move forward at this time. Thank you. Anybody comment or questions on the committee of this and the morning flocks are coming up on the comment. I think thank you, Mr. Chair, for the record morning Fox deputy commissioner for the Department of Mental Health. First, like to say, I appreciate the plethora of apologies today. None really needed. Like I said yesterday, a lot of things going on and we're all trying to manage as best we can, especially during the pandemic. But I'm just glad that this worked out. It's a very good collaborative effort. I have no other comments. I think attorney share covered it very well and captured the intent in the conversation that we had. And I would just like to express my particular thanks to attorney share and attorney Pepper and and Eric Fitzpatrick as well and our counsel Karen Barber for quickly turning this around and having a good collaborative effort. So I'll just leave it at that. So I guess we'll go back to our regular witnesses now that we have the change, which starting with Judge Greerson. Shall I take the document down? Senator Sears or? Oh, yeah, please. Yeah. Oh, I want to mention while Eric is changing the screen. Unfortunately, Senator White is ill this morning and is not joining us. Good morning, Senator Chairman Sears and the committee. Thank you for allowing me to testify this morning for the record. Brian Grears and Chief Superior Judge testifying on amendments to S3, I believe. You know, I don't have any opposition to the amendment that David and the group have put forward. I will note on the first amendment where it talks about notice if a case has not been dismissed. And I understand the concern on the part of the committee and everyone about violent offenders who has who have been found incompetent, maybe under in the custody of the Department of Mental Health. And I understand the need for state's attorneys to be involved in the decision. And that's important. One of the things and I'm just trying to verify it as we're talking. That I have heard is that when some individuals and think pepper, maybe it was David mentioned low level offenses, disorderly conduct, where someone is found incompetent and they're released into the community on an order of non hospitalization. The question becomes what happens to the conditions of release that were imposed when the person first came into court and if in my view, if the person is being released into the community under an O and H I question the need for continued conditions of release because then the question becomes is the person following conditions of release or the terms of the O and H and I don't know how widespread it is. I've heard at least from one judge that in other words, these cases can remain pending for a considerable period of time with conditions of release outstanding, but there's no active case. The case has not been dismissed. And so I just raise that as I don't know what what the state's attorney's reaction is that, but I would think if someone's in the community, there's no longer a need for those conditions of release. And if they're released into the community, as opposed to a hospitalization, which obviously involves our most violent offenses, I understand the need for keeping a case open in the event a person retains competency. But I think on a lot of the low level misdemeanor offenses, it raises other issues. And so I just throw that out for the committee's consideration to think about that because it truly is it truly is a discretionary call by the state's attorney's office. I know when I was sitting regularly, it was routinely that someone was found incompetent other than in those significant cases, the cases were dismissed and the person was placed on the O&H. And I'm so I raised that raised that issue. Comments, questions. Thank you, Judge. Other comments on the bill, Judge. No, I you want me to go back to the amendment for yesterday. I haven't testified before. No, I know that. Yeah. So let me go back to what Eric sent me yesterday. I don't believe we had any concerns. More of a question, I guess, because I hadn't testified before under section. It's on page three under line 1011. It's struck that there would be represented by the office of the Attorney General. I'm assuming this is taking place at the time of the so-called hospitalization hearing. That's when Vermont legal aid would become involved at that point. And I guess the question is who is representing. The state at that point continues to be the state's attorney as opposed to the Attorney General's office. Most of that. Senator, I can jump in. This is actually the result of a discussion between the department and the Attorney General's office. Between the two entities, we anticipate that what we know that DMH will have the representation they need. The issue is that in some cases, a conflict, a direct conflict within the Attorney General's office can arise if the Attorney General is also prosecuting the case. But we are in discussions on that and we're confident we'll work that out administratively. OK. And I think that was I'm just going quickly through this notice provisions. And if I read three, that's what we were talking about earlier, that when notice is provided to the committing court and to the state's attorney of the county where the we support that because I think there had been a question previously if it was just to the committing court, you know, who's to enforce that order or attempt to enforce it. So. I believe Senator with with that. We don't have any objections. Thank you. Any questions for the judge? Matt Galerio. Good morning, Matt. Morning. Thank you for having me. I was watching with great interest yesterday on YouTube. So I'm familiar with the discussions that were had. I. Have a couple of issues I wanted to bring up. And I guess now is a good time as any. In part of this. I did receive a copy of what the Attorney General's Office of the late put together last night. My first glance through it was a little bit late night. I was focusing on a different part of the bill and I had represented to them that I had no concerns at all. With that section that they had amended. And at closer review, there was an issue I wanted to bring up. And. The. It starts with the three a one. A person. What a person has been committed to the section and subject to the order. And the person is not complying with the order. I was going to suggest that. Language to the. To the effect of that the person is not substantially complying with the order. With a lack of substantial compliance makes that person a danger to themselves or others. As opposed to. Having discretion to. Go back to the state attorney and. Where there are minor. Deviations from the treatment point of. As opposed to something that is serious. And I know that with. Folks with mental illness. Having represented a lot of people in my prior. The prior part of my career. Who were under these circumstances. There's a lot of discretion about when people are brought back. And. I'd want to make sure that it was not for. Minor. Deviations from a case plan. But for something. There's actually presents a danger. And that there needs to be some. It means this is a clinical evaluation. Or than it is a. It's not like a condition of release. That you have for the with the courts. Where it's really a per se kind of violation if you don't do a specific thing. So I throw that out there for your consideration. The. The biggest issues that. My office have that I've run this by. The appellate division. With them having litigated. This issue most recently. Is the. Um. Section under section four. The amendment to rule sixteen point one. With that section obviously says is that. The under the rule. The court can order a mental examination by a psychiatrist or an expert. When there is a. Finding that the defendant is not proper to stand trial. And I think that. Really what this is. At this point in the proceeding. And this is what the case law says and what the law is. Everybody in the courtroom the judge. Prosecutor. And the defenders. Have the exact same interest. Right. As a matter of law. That is everyone has an interest. In making sure that somebody who is. Do the jurisdiction of the court in a criminal matter is competent to stand trial. The court wants to make sure that person is competent. The prosecutor has an obligation to make sure that person is competent before they pursue. A criminal case and so does the defendant. So in. What this is basically saying. Is this this issue was kind of unveiling or rolling back a. What I see as. A different agenda that is contrary to what the Constitution requires and and a. Agenda that is contrary to law. Which is. When you have an independent of value court ordered evaluation and that evaluation. Is. Comes out that says that the individual. Is not competent to stand trial. It's saying to the states attorney that. You get another bite at sort of another bite at the apple not because. There's anything wrong. With the evaluation because you don't like the result. Of the evaluation. So. I'm going to make a suggestion if you're going to do I don't think that this is a problem in the law as it is and I can go and I'm going to go through. A couple of. Of the. Findings that the court has made in various cases. Regarding this issue. But. If you have a court ordered evaluation by a neutral evaluator. Unless the state. And after having reviewed that. Evaluation. And any information that the court's evaluator expert has. Relyed upon in making that evaluation unless the state. And show that that. Report. Falls be below the standard of care for. What you have to do to actually make those reports. Then there's no reason for the. They do have an additional evaluation. Because there's not an. Any allegation being made. That. Or there would be no finding or ability to say that there was something wrong with the other person was not neutral. That they were biased. That they didn't follow the standards for what you're supposed to do for evaluation. All all you're really saying is we don't like the result. As a result the state wants another bite at the apple so that we can pursue this person. Similarly. And that is not. That is not an appropriate reason. To allow a. The state's attorney to get a. Second review of the individual. However I would agree that if they. If the state attorney looks at the information consults with their own expert. And the expert says what this doesn't live up to. Appropriate standards of review. That this person has bias and we can demonstrate this by. Other things that they've done in their career or the like. That this is not really a neutral court ordered. Psych evaluation. That this evaluation is flawed. Then they should have the opportunity legitimately. To get a. To request that the court order a second. Independent evaluation. That much different and it was very interesting today. I heard that the term defense expert shopping yesterday. From state's attorney Marthich. When these evaluations are ordered these are court ordered neutral psychological evaluations. Not ordered. Through my office but not paid for by my office. They are court ordered evaluations. So. In fact what this is suggesting. Is that. The state attorneys can actually. Expert shop. So they can get a different result. From the neutral evaluation that the court. Ordered evaluation produced with no showing. That there is anything. Biased or substandard with the evaluation. That the. That the court has. Ordered and received. This is one of the things that. Was. Addressed in the Cheryl case in the last within the last couple of years. And the court in that case talked about the exact same things that I just talked about. And also talked about. The dangers of what occurs. When you allow the state. To involuntarily. Evaluate. A defendant in a pending criminal case. And one of them. One of the things that talked about is a constitutional rub. That. It would be a quote and in parent and possibly unfaithful unfair advantage. Leaning insight into defense strategy by allowing the state to evaluate. Independently an individual who is the subject of a criminal complaint. That is. A defendant under the. Under the fifth amendment under their fifth amendment rights. Has no obligation to speak. At all. During the state. You know states pursue the case. An evaluation like this would. Potentially violate fifth amendment rights. And. Allow the effectively the state to get a statement contrary to the Constitution. Under the guise of doing a. Mental evaluation. Even when the evaluation that was first performed. Was one that was by a neutral evaluator not an evaluator. Who was selected by the defense. The bottom line here is that. I think that you run into. Constitutional problem fifth amendment constitutional problems here by allowing the state to examine. A client. With a pending criminal case. And there's no showing. Particularly when there's no showing that the process that has been followed. Is. Long. So. To me. Absent. Some kind of showing. That the. State ordered. Reportedly neutral evaluation. Is flawed biased. In some way. Water biased or or doesn't live up to the standards of. Medical and psychological. Testing. The state should not have an obligate an ability to get another one and if they get another one. It should be another neutral evaluation not one that allows the state to. Shop for whatever psychiatrist or psychologist they want. They can do that and have there's. After the after the fact if there's a if they want to contest it. The state just like just like my office does if we don't like the result of a. Of an evaluation but the court does we can go out and hire an independent person and then have that person testify why. The state was wrong. By order of the neutral evaluation was wrong but. You will do paper reviews will do all of the stuff that any kind of privately and I don't mean privately but. Independent retained by either the defense or retained by the prosecution expert would do. To. Say why the neutral evaluation was wrong and why in our case a jury should disregard that if if there is a diminished capacity defense or insanity defense or something like that and the state can do the same thing but what we're talking about here is independent neutral evaluations. That are. Not. Shows it by the defense. That really just gives the state a second bite at the apple. I thought this was the heart of the bill. Thank you. This is how do you how do you not. How do you protect. The public. Without providing some information the state attorney about the risk of the subject. We're talking this is rule sixteen point one deals with the with a what you're doing to decide what to try a case and understand that this isn't about the hospitalization order of non hospitalization. Information regarding protection of the public would be the subject of the hospitalization hearing not the not the criminal trial. The criminal the criminal trial is about whether or not the person you're not going to have a criminal trial because the person's own maybe I'm missing something. You're not going to have a criminal trial because the person is not competent to stand trial or not guilty by reason of insanity. Correct. And then how do we protect how do we protect the public. That's the whole issue in this bill that matters how do we protect the public and one of the problems that have been identified is the state's attorneys are kind of left out of the man out of the loop. You're missing here and what you're missing is that the next stage in the process after somebody is found incompetent or insane is to moves move to the level of the hospitalization hearing and that hospitalization hearing is going to again deal with evaluations and the like as to what is appropriate to make sure that this person is not a danger to themselves or others. And what degree of treatment and supervision is necessary by the Department of Mental Health to protect the public. What rule 16.1 is about is whether or not the state can convict somebody criminal. It's not about danger to self or others. It's about the constitutional rights that people have to defend themselves and to make sure that they're getting a fair trial. Something went to that there are other due process protections that take place in the hospitalization hearing and that is where the details of protection of the public are addressed specifically whether the person is a danger to themselves or others and what conditions are required effectively to make sure that the public is protected completely different proceeding completely different issues. This is this right here 16.1 is about new process rights during the criminal proceeding and has nothing to do with protecting the public at all. All right. Anybody. Thank you. Any other questions from that? That's all I have. Thank you. Any comments? Upper or David share David share with you. Sorry, it's you know, I I understand, you know, we had this conversation last year, of course, about this section of the of the bill. You know, arguably I would just say at the outset that what this section allows is for a reasonable psychiatric evaluation. I think that's an important threshold. A court needs to determine already under this language that the psyche the subsequent evaluation by a state prosecution hired evaluator is reasonable. And so there will be threshold questions that the courts going to ask about why the you know, the DMH hired evaluator was insufficient. And, you know, when I think about why evaluation might be insufficient, you know, I just look at the actual share case where arguably the state had this authority prior to the share case. The Supreme Court subsequently said that there wasn't OK. And, you know, in that case, you know, without wasting too much of the committee's time, the defendant, you know, strangled his domestic partner to death while he was awaiting kind of you know, his evaluation. He attempted to hang himself and afterwards he claimed that he had amnesia about the murder and there's two evaluations done a defense evaluation and the DMH evaluation. Both of those evaluations called into question whether this amnesia was was legitimate. The defense hired expert suggests, you know, in her report suggested that there might be some exaggeration and then the DMH expert in his evaluation said it could always be the case that a second opinion might come out different than than this one and that's all in the printed case. And so what we're asking for here is the ability if we're getting kind of conflicting information to be able to hire just a third evaluator and I don't know, David, if you want to add on to that. Thanks, Pepper. That was a good summary of the fundamental issue and it is, you know, this was a discussion we had last year and the committee did decide to move forward with Bill as it's currently drafted. The issue here is in large part can there be a meaningful hearing about competency if a state's attorney or attorney or assistant attorney general cannot contest whether or not, you know, cannot contest the findings of the court ordered examination before the sheriff case that was routinely allowed sheriff as a matter of statutory interpretation said that the statute didn't allow it and all this is trying to do is return the state of the law to what was commonly allowed beforehand. I understand Cheryl had discussions about constitutional issues and basically said that their decision did not contraven constitutional interests, but it did not base its decision on that. That was largely dicta written into the opinion after they came to their holding. And we, you know, it's certainly our belief that that changing it to allow for a meaningful hearing about competence, which is essential and in our view also will not contraven constitutional interests. So, you know, we supported this provision last year. We support it still and believe that it is really a return to the prior state of affairs and not constitutionally problematic. Hey, thank you. Eric, would it be possible to get a copy of the Cheryl case? Yes, absolutely. I think I've sent it before, but I'll I'll resend it to make sure you have. All right. Yeah. I'll resend it. Okay. Um, we're going to I'm going to add one thing. Yeah, please do add that. Yep. All right. So what I think what pepper is suggesting is that the word reasonable in J submit to a reasonable mental examination allows the court create some standard the court. And what I'm suggesting if you're going to do anything like this. And of course, I I don't and I'm not even sure if this would stand up to constitutional muster. But I would suggest that you put a standard in there for when what reasonable means and my suggested standard I think would work, which is that the that the state demonstrate that the independent evaluation by the court is not up to medical standards. That there is some sort of bias or other reason not to to to have a judge that report be legitimate. And if you know if you can meet the three prongs then they would be entitled to an additional independent evaluation not an evaluation selected by the state to give them the result that they want. You know this what what this gives rise to exactly what they were complaining about which is expert shopping except for it's a state doing the expert shopping when somebody's liberty is at stake. I if you're going to so if you're going to do something I would suggest that you define what what would be required to overcome an independent court ordered evaluation. Thank you. Thank you. Are there any other issues with s3 right now before we jump over to s3. We tomorrow morning is there a need to hear from Julie Tesla anymore when we mark this bill up tomorrow morning at 8.45. I mean at 8.30. I'm not really sure I haven't heard any response from them as far as the new amendments go at this time. We can reach out to them and could you check to reach out. I don't want because I think we just change that Peggy to s3 mark up and vote. Okay. I know she was trying to find someone to testify because she didn't feel like she was the right person so well may or may not be necessary right now the word there was a discussion yesterday about Rufflin mental health offering services that are unavailable at United Council service in Bennington I'm sure so part of that discussion revolved around is there a geographic significant geographic differences and designated agencies that create public safety issues and some of this I can frame the question that way. Maybe that's a longer discussion involves health care but certainly that that was actually I think the question that arose during some of the testimony yesterday. Now I can check in with Julie Tesla Mister chair. Okay. Appreciate it. We're going to take a quick pivot to s3 will take I mean s30 will pick up with s3 tomorrow morning at 8. 830 you know yet 830 tomorrow morning. There's a serious ask a quick question about the markup tomorrow morning on history. Do you want to look at a clean draft or do you want to continue to look at a clean draft with the language that has been provided this morning by the by the general and state's attorneys. Also probably draft 2.1 or yep. And also should I caption it as a committee amendment at this time or yeah, it would be why you can keep my name on those. Okay. But I would highlight that I think our main area right now is down to section 4. Rule 16.1. I just sent the case to Peggy to forward to the committee at the post. Okay. All right. Thank you. You bet. Thank you dump over to s3 in a second. I'm going to why don't we take a 30 second break if we could just