 Good morning. This is Senate Judiciary Friday, March 12th, 2021, day of crossover, which means that we have a number of bills on the agenda, and we're starting with S3 and actually in the competency to stand trial and insanity as a defense. We have documents and a change from Eric if you want to post those changes so we can go over a potential final version. I did get a letter from disability rights Vermont with concern about Section 3 and I'm inviting him to meet with the committee next Tuesday to go over those concerns if this bill is as proposed, sends out a here with a positive vote, it'll need to do appropriations. There's going to be money for Vermont legal aid as well as money for the forensic work. So it will be a by rule go to appropriations. So why don't we start with that Eric? Sure. So should I go ahead and pull up the the new draft? Yeah, please. All righty. Good morning, everybody. It's Eric Fitzpatrick with the Office of Legislative Council here looking at the Senate Judiciary Committee's strike all amendment proposed strike all amendment to to S3 is an act relating to competency to stand trial and insanity as a defense. Senator Sears, do you want to do a quick review of the bill in its entirety or maybe just focus on focus on the changes I think unless committee members have questions. Sounds good. So no changes to section one. If you recall, that's the section that just basically makes clear that evaluations can be about the defendants competency or sanity or both. And that the opinions are presented in a certain order. And that's remember people talk about that yesterday as well, that the only time that if they're both sanity and competency are going to be evaluated, then then sanity evaluation only takes place that the person is competent to stand trial. Right. Section two, you may recall there's a change here. And this is the piece that provides that this has to do with the proceedings when a person is found incompetent to stand trial or not not guilty by reason of insanity. And the next stage in the proceedings is for the court to determine whether the person is dangerous to self or others. So that the operative question there being whether the person should be committed to the custody of the Department of Mental Health. Now at that stage of the proceedings, remember what's going on here. This is lines 12 to 14 is that the person is entitled to have counsel appointed by Vermont legal aid member in the past. It has tended to be the person's defense counsel has continued to represent the person. But at that point, it's no longer a criminal proceeding to commit the proceeding. And it has the witnesses have testified it makes sense to have Vermont legal aid pick up the representation at that point. So the second sense is where the change is just clarifying that the Department of Mental Health is also entitled to appear and call witnesses at the proceeding. But remember that's the issue. There had been some language there about the attorney general. Exactly. Exactly. This is where the 250,000 comes in. Is that correct? That's exactly correct. And and that figure came from joint fiscal or Jack. Joint fiscal. There was a fiscal note they had done on that question a couple of years back. And I spoke to Nolan about that and joined fiscal and let him know that that issue would come up in the probes next week. And he said he would work on updating the figure. But as I think it was 2017, it was 250 K. Okay, so there will be an appropriation. And can I just ask quickly if DMH had been represented by the attorney general's office and now are not going to be? Is there any impact for them financially? Or would they just eat that? I don't think B is all new language. Oh, I. Oh, okay. So we were altering a preview. We were altering the new language. Okay, great. But Eric, am I correct? Yes, I think that's right. I have a question also. So if the can the person still have their own private counsel if they have money and they want to do that versus having legal aid represent the person? Yes, that's exactly the question that that's why this language was changed on the floor last year on line 12. Okay, so that in response to that exact concern center, Nick, the words shall be in being titled were added to so that the person could have legal aid appointed, but that language wasn't there before. And it was a requirement. And there was that exact concern that they wanted just in case the person wanted to still have their private counsel appoint him or her. That language is added to make sure they could. Okay, very good. Thanks. Okay, thank you. Probably the more controversial section is section three. Yes, this was the provision that you recall that the Department of Mental Health and the Attorney General's Office and the state's attorneys worked offline to come up with some language that they could agree upon. And there's still some highlighting in there, which I neglected to remove. Otherwise, the languages is as agreed to. So again, this is the provision regarding victims notice. And with respect to folks that have been committed after, and that's the initial sort of language that defines who this victims notice applies to and what cases. And you'll see that that's in 2A line seven through 12. So when does victims notice kick in? Well, it kicks in when a person is committed to the Department of Mental Health. After having been found, and this is line 10, either not guilty by reason of insanity or incompetent to stand trial, provided the person's criminal case has not been dismissed. So remember that was the issue that was discussed yesterday as well. It's not all competency, not all cases in which incompetency is found. It's those cases in which incompetency is found and the person's criminal case is still open. And I should have asked this when Erica Mathidge was here when she brought up Elizabeth Teague. Why is that one different? Where the state's attorney's already able to be involved actually was at a hearing on whether or not she should be released into the community, into a alternative program. I'll go back to New Jersey. I don't remember all the details. Why is that case? Is that because it was it beyond the because it's older than five years? Or what's the reason? Do you know? Does anybody know? I don't know the answer to that one. Sorry, Senator Sears. Maybe Pepper in a research force. I know. It seems like much of what's happening here. Well, I mean, I don't I don't know the answer. James Pepper from the Department of State's attorneys. But I would imagine that it's because the the notice provision that existed in law was was modified by Supreme Court case a few years ago. And so, you know, if she was getting notice for 20 years, and then all of a sudden, you know, maybe right now she's not getting notice any longer. But because of that, she actually was recently. David share with the Attorney General's office here. It may be that that case is proceeding under C one, which we're not modifying in this and C one and C one does have a slightly different construct where a hearing can be required by the court prior to a discharge being allowed. And my guess is I'm not familiar with that case, but my guess is that's got what's going on based on her description of it. Thank you. So can I ask a question on this? And I'm wondering with regard to if a case is dismissed. Is there any notice at that time to the victim? I'm thinking about a couple of the Burlington cases that were dismissed and some were picked up again. But what happens then? What's the case for the victim? Do they get any notice? Anybody? David share with the Attorney General's office again. No, they would not in that case not under the new not under C two, you know, will be the state's parents responsibility to make decisions that are best for victims and community members. Well, there was certainly quite a bit of notice in those cases. So yeah, I would say that they would get notice at the time of the dismissal. But they wouldn't get any further notice. So the state's attorney would notify the victim that this person is going to be placed on an OH and that we're going to dismiss the charges. Any further notice would be would not exist after that. Is there I know there is no case right unless the Attorney General in the case of the one of at least one of the Burlington. This is Morning Fox Deputy Commissioner Department of Mental Health. I concur with both attorneys share and pepper that in that circumstance, once the charges were dismissed, there would be notification at that at the dismissal. And then if charges were rebroad up again in kind of some of the similar cases in in the new media, where the Attorney General's office has retaken up a case reopening charges, then that with the notification process would begin again from our end. And just as a quick comment just to be clear on the fiscal note, there would be some fiscal impact for the department as well. And between the legal aid fiscal note of 250,000 that Eric Fitzpatrick mentioned, there would probably be about a similar amount for DMH, both to cover more attorney costs for being in appearance at these hearings, as well as for the additional evaluations. Okay. Thank you. To move forward, Senator Sears. Yes, please. All right. So we were just talking about the universe of folks who would cases that would trigger the victim notification. And that's what we just went through when there's been this not guilty by reason of insanity or incompetent to stand trial and the case not being dismissed. So then the next question is, all right, when when victim notification is triggered, when does it happen? And that's what is dealt with in subdivision B here. So when the person has been committed under this section, so in other words, it's a person coming in through the the criminal justice system after having had one of these findings that we just described. The commissioner of mental health that is required on line 14 now to provide notice to the state's attorney where the prosecution originated or the AG's office, if that was the office that prosecuted the case under, you'll see three different triggers that provide notice that when notice is required. The first one is line 17, subdivision one, at least 10 days prior to discharging the person from either the care and custody of the commissioner or commitment in a hospital or secure residential recovery facility. My understanding is that that's a reference to middle six to the community on an order of non hospitalization. So you got two under this subdivision one, there's two two different actions that could happen within the department that would trigger this notification to to the state's attorney or the attorney general, they either discharging him from the care and custody of the commissioner completely. That's line 18, or they're not being discharged completely. This is lines 19 to 21, but they are being moved from the commitment in either in a hospital or secure residential recovery facility on an ONH to the community. So either one of those actions would trigger the notification requirement to the SA or the AG. So that's the first trigger. The second one is subdivision two going on to page six now, at least 10 days prior to the expiration of a commitment order. If the commissioner doesn't seek continued treatment, so that's the that's the situation where where there has not been a formal discharge. But once the commitment order is reaching the end of its length, the commissioner is determining not to seek continued treatment, in other words, not to seek to hold the person within the care and custody of the department. And that kind of brings up the Supreme Court case that folks have been talking about, because the court had said that the notice was only required in case of a discharge. Well, deciding not to seek continued treatment is not not strictly speaking a discharge. So this language is intended to make sure that notice is provided, even in those situations where there hasn't been a formal discharge, but the the department's deciding not to seek continued treatment of the person. So that's the second second situation in which the notice has to be provided. And the last one is any time that the person abscones from the custody of the commissioner. So in that situation as well, the the commissioner has to notify the SA or the AG's office. So those are the three, three circumstances under which notice is required. And then if notice is required, this is line six through nine, if the SA or the AG does get that notice, then they have to provide the notice to the victim. So they take the notice that they got from the department and they inform the victim as well. So that's the way that process would work. Now, subsection subdivision C rather is also dealing with the subject of notice, though it's a slightly different situation. This is referring to notice that the commissioner has to provide when it's not has to do with, you know, the sort of timing of treatment, it's not having to do with, you know, the other ones are all triggered by, for example, 10 days before a person is discharged or 10 days before a person is they decided not to not to continue treatment on a person. This is a different situation, different circumstances. This is the situation where a person has been already subject to an order of non-hospitalization that's lines 13 and 14. So they're subject to an O and H, but and this sort of skipped down the lines 18 through 20. But the person either doesn't comply with the order or the alternative treatment hasn't been adequate to meet the person's treatment needs. So if either one of those sort of triggering circumstances happen, then the commissioner provides notice to the state's attorney or the AG. Senator Sears, can I ask you a question? Eric, the construct of the notice requirement with the word or between the state's attorney's office and the attorney general's office and the triggering mechanism that comes up with each is whether that office prosecuted the case. The incident that occurred this past year in Burlington where the attorney general's office had dispute with the local state's attorney's office about prosecuting. Am I safe in assuming that if the state's attorney's office is the one that prosecuted the case under this construct notice would not be available to the attorney general whether or not they sought it? It's an interesting question. I guess I would read that as the state's attorney gets it if they prosecuted or the AG gets it if the AG prosecutes it. Yeah, that's the way I'm reading it too. But I just want to, I'm thinking back to this past time. I don't even remember when it was now, but Sarah George made the decision not to prosecute and the attorney general decided to prosecute. And it just seems like there's a definite line of demarcation as to who is entitled to it. I just want to make sure everybody's on the same page with that. Right, might be worth seeing what attorney chair and attorney Pepper have to say on that. I would almost read it as if in one of those rare circumstances where they're both involved, maybe they would both get noticed. But, you know, because at different stages of that proceeding, they both prosecuted potentially. Well, I know how I'm reading it. I don't know how they're reading it, but maybe it's no big deal to them. I just want to make sure we're all on the same page. No, I guess we could ask the question. It's a big deal. David or Pepper? Chair here. Oh, sorry. I'll go. I mean, I read it to the intent to me is pretty clear that it's whoever has the case should be getting noticed. I understand Senator Benning's point. I think it's a reasonable, it's a careful reading and a reasonable point. I think that it's clear enough that the intent is that it's who is prosecuting the case should be getting noticed. That I don't worry about it hugely, but I guess if the department felt like felt differently or agreed with Senator Benning's reading of it, then we might have to do an amendment because I think the common understanding here is that the entity prosecuting the case should be getting noticed. Yeah, I certainly have no problem with that, David, but I think we're also putting a burden on the department of mental health. If the AG's office calls up and says I want notice, to me, this clearly says if it's the local state's attorney's office that has prosecuted, you're not getting that notice and they in turn have a right to say no. Right. I think that it depends on how far the past tense, you know, what the past tense here applies to. I think that my argument would be that once the Attorney General's office, if this were to happen again, which seems unlikely, but if the Attorney General's office were to take out a case like that, you could argue that they now are encompassed by that term prosecuted, by that past tense prosecuted, because they have made a decision to prosecute. But I understand the Senator's point and, you know, be open to clarification if others feel that that would be helpful. Why don't we look at this on Tuesday? We can always do an amendment before third reading. Okay, Eric, is that completed or we haven't gotten to section four yet, have we? No. Section four is right there. No changes to that. Yeah, no, we've lost you. If you could, your video's gone. All right. Let me pull that back up. Is that visible to folks now? Yeah, we're on section four. Yeah. Rule 16.1. Right. No changes to this. This was obviously everybody did get a copy of the sharehold decision. Yes. Yes. No changes to that. Section four. Correct. Yeah. I think everyone's understood pretty well that it shouldn't be a surprise to anyone if this ultimately gets litigated. There are different points of view from the prosecution and defense attorneys that you've heard from about whether or not this may pose constitutional problems, but the court can weigh in on that if and when that argument is presented. Section five is unchanged. Unchanged, correct. And then section six has a minor change, am I correct? Yes. Two changes actually. So this is the forensic care working group, and it sees a long list of stakeholders. Senator Sears, you were wondering about members of the community. I see that on line 17, that's existed. That was not a change, but Vermont Care Partners has a... Yeah, that's the designated agencies. Right. The addition here is on line 19, crime victims representative appointed by the Vermont Center for Crime Victim Services. So that's new to this draft. And then the other new addition is... Where are we here? Here we are. Lines 13 through 15 that you're looking at here. This is the standard language that we use, the per diem for people who aren't state employees. Right. I think that gets you the appropriation. Yeah. I'd like to make sure that there are two victims represented in this. So... Can I ask, is that... Do we do that elsewhere in other committees? In other words, rather than having the victims services representative have actual family members of victims? Yeah. We have done it. Okay. I think... So what were you thinking? Did you want to just change that to two or... Yeah, two. Yeah. Okay. Sounds good. The only reason I ask is because it seems as though we might set a precedent where we would, in terms of any of these kinds of working groups, then have requests from victims' families to be on those working groups using this as an example. This wouldn't necessarily be... The Center for Crime Victim Services is doing the... Is doing the what? Is doing the appointment or... Clorally. I see. So you're saying it wouldn't necessarily be a family member. It could... No. It could be anybody appointed. But I'm just looking at the list of people who are on here. You look at the list and where are the representatives of victims? You've got healthcare systems, you've got the GAs, you've got the healthcare reform, Department of Buildings and General Services, Mount Legal Aid's Mental Health Project, Mental Health Care Ombudsperson. I think it should be Ombudsperson, isn't it? Or is it still Ombudsman, by the way? Yeah. I don't know. That's a good question. Check with Katie. Anyway, yeah. Check with Katie. But I just... I'm looking at the list here, Senator Baruth, and it seems like it's pretty stacked. Yeah. I'm not speaking to... It wouldn't necessarily be a victim member, a victim's family. It could be. But appointed by... Yeah. I understood you to be saying you wanted to have two victims. Well, I know. People representing the Vermont Center for Crime and Consumer Services. Okay. I just pulled up the statute, Senator Sears. It is still Ombudsman. Okay. All right. It's a good point, though. It should be Ombudsperson. Well, I don't think I'll change it. Let's go. It's enough controversy here. Am I clear, Eric and Jack or Morning Fox, feel free to chime in. It's section two that's the $500,000 pass. Correct? Yes. I believe so. Yes. And that's whether we do this language in B on page three or not. Is that correct? I'm just trying to answer the question when it gets to appropriation. Yeah. The appropriation is not connected to section three. It's only connected to the representation. Section two. Yes. Okay. And that creates that cost for mental health, as well as not legal aid. I'll defer to Morning on that, but I think he said that the answer is yes. Okay. So I just want to be able to zero in on that. And maybe when that appropriation gets put into the bill, it should reference that section. Yeah, absolutely. So shall we go ahead and put for purposes of this bill that will change the victim to two victims? And do you also want to add specific appropriation? Well, I think we probably should, to be honest with ourselves, that it would cost $500,000. It's estimated. We don't know. We could wait until get the language for that until Tuesday, if you wanted to. It's certainly up to the committee for it. Either way, it's fine with me. Okay. I think we can take the, we can go back to a gallery, take the, take the bill down and discuss the committee. I don't, I mean, I think there's enough there to send it to appropriation, whether we put that in or not. But I mean, I just want to make clear that we should put the $500,000 into the bill as an appropriation. $250,000 to Vermont Legal Aid and $250,000 to the Department of Mental Health. We can obviously narrow that down or raise it up or whatever in appropriations. Normally appropriations will take the appropriations out of the big bill anyway. Any other questions on this, Terry? Just to verify something. So the two victims or family members or whomever they decide, is that being, those persons are being appointed by or selected by the Vermont Center for Crime Victim Services. And it doesn't mean that it'd be a family member. It's people selected. It could be Chris Fennell and somebody else who represents. I just, it could be a victim. Anything else? What draft number was this, Eric? Oh, you're muted, Eric. Eric, you're muted. Eric is muted. Thanks. This was the first committee strike all amendment. So it was 1.1. Well, it's still 1.1. Yeah, because remember, they weren't committee amendments before. Oh, right. Right. Okay. So is there a motion to amend S3 as seen in draft 1.1 that was just went over. I make a motion that we amend 1.1 as amended. Thank you. Senator Nick has moved that we report that we amend S3 as seen in draft 1.1 with two changes that are not in the current draft, but will be shortly. One being adding two members appointed by the Center for Crime Victim Services, the other the $500,000. Is there any further discussion? Anybody in the audience or anybody else on the committee? If not, Peggy, could you please call the roll? Benning. Yes. Senator Necta. Yes. Senator White is not here. Senator Baruth. Yes. Senator Sears. Yes. I'll report the bill. And let Senator White wants to see what she can. I don't know if she can. Not able to vote today. All right. Thank you.