BURLINGTON — A Burlington judge has ordered that Aita Gurung, the defendant in a high-profile murder case, will return to prison pending his criminal trial after a Department of Mental Health officials said the department would not be willing to re-take custody of him.
Judge Samuel Hoar’s decision came after Mourning Fox, the deputy commissioner of the Department of Mental Health, said it would not take Gurung back into their custody due to concerns about federal funding, the security of their Middlesex facility, and other issues.
Gurung is accused of brutally murdering his wife, Yogeswari Khadka, 32, and seriously injuring his mother-in-law, Thulsa Rimal, on Oct. 12, 2017, at their residence in the Old North End of Burlington.
Attorney General TJ Donovan refiled charges against Gurung last week after State’s Attorney Sarah George dismissed the charges earlier this summer when she determined she would be unable to counter Gurung’s insanity defense. Critics say Donovan’s decision, made after Gov. Phil Scott asked him to review the Gurung case and two others, was politically motivated.
Gurung had been in the custody of the Department of Mental Health at the Vermont Psychiatric Hospital in Berlin since 2017. He was moved to a lower level of treatment at the Middlesex Therapeutic Community Residence earlier this month after charges were dropped. But when charges were re-filed, Gurung was moved to prison at the Northwest Correctional Facility.
The three-day hearing that began on Sept. 18 was held to determine if there are any set of conditions of release that could reasonably protect the public safety and ensure Gurung does not flee the state.
Gurung’s attorney, Sandra Lee, had requested Gurung return to the Middlesex facility to continue his treatment with the condition that he return to court if the Department of Mental Health determines he is well enough to be released.
The Attorney General’s Office argued Gurung should remain in prison because the Middlesex facility would not adequately ensure public safety and ensure he doesn’t flee the state.
Hoar wrote that he believed DMH custody of Gurung at the Middlesex facility could adequately mitigate Gurung’s risk of flight and reduce his risk of harm to himself while continuing treatment. But he ultimately granted the Attorney General’s motion to hold Gurung without bail in prison based on Fox’s statement that the DMH would not take him back into their custody.
“Mr. Fox made abundantly clear in his testimony that the DMH can no longer support the (order of non-hospitalization) to which it agreed three weeks ago,” Hoar wrote. “While it is clear that this determination is based not on the clinical factors detailed above, this court is unwilling — if it even has the constitutional authority — to second-guess a decision that is committed exclusively to the Commissioner of DMH.”
Ultan Doyle of the Attorney General’s Office called Fox to the stand on Wednesday to testify primarily about the security of the Middlesex facility.
Fox testified that the Department of Mental Health was not willing to accept responsibility for Gurung. He said that Gurung’s clinical picture had changed with the added stressor of the re-filed charges and that he was concerned about the level of security at the Middlesex facility and the department’s ability to treat other patients there.
Fox also said that he believed the department’s federal funding needed to operate the facility would be at risk if it took Gurung into their custody under criminal court order, as it is a treatment facility and not an arm of the criminal justice system.
Fox said residents at the Middlesex facility have their own rooms and are able to walk around the facility unrestrained. There are no security personnel at the facility, he testified, and patients have access to materials that could be used as weapons, including electrical chords, scissors, pens and pencils.
“This facility is seen as a transition to being more integrated in the community,” Fox said.
The Middlesex facility is near Interstate 89, and residents have access to the internet and cell phones. There are only two locked doors at the Middlesex facility, as opposed to five at the hospital in Berlin, and staff are not allowed to put their hands on patients to restrain them, Fox said.
The Middlesex facility rehabs patients by taking them on trips into the community, including apple picking and shopping. In the last six years, there have been four “elopements,” Fox said.
During her cross examination of Fox, Lee pushed back on some of Fox’s concerns and argued that even with the renewed criminal charges brought by Donovan, Gurung could still be held at the Middlesex facility.
Lee argued that Gurung’s doctor, Alison Richards, the medical director of the Vermont Psychiatric Care Hospital and a treating psychologist at the Middlesex facility, would be most qualified to make the determination on whether or not Gurung was a threat to himself or others.
Lee called Richards to testify Tuesday. Richards testified that she recommended Gurung be transferred to the Middlesex facility because he no longer met the acute level of care required to remain at the hospital in Berlin.
While it was first determined he had no longer met the acute level of care in December 2017, he remained at Berlin as his criminal charges were pending because his team was concerned about his suicide risk with the charges as a stressor, Richards said.
Gurung remains a suicide risk, but when he was transferred to Middlesex facility earlier this month, mental health professionals were not worried that he was a risk to others, Richards said.
While their could possibly be trips into the community as part of his treatment, Richards testified that there had not been any consideration of allowing Gurung to leave the facility due to his present condition.
Richards also said Gurung had never posed a risk of escaping and never harmed anyone during his two years in custody.
After Hoar’s decision, Lee notified the court that Gurung was seeking a speedy trial. Lee told reporters afterward that she was seeking the trial be held this year, and said that she believes the trial will take four to six weeks, in part due to the need of a Nepali translator for Gurung.
A competency evaluation is scheduled to determine whether or not Gurung is competent to stand trial. He was found competent to stand trial in December 2017.
