The Vermont Attorney General’s Office contends a man accused of killing his wife with a meat cleaver three years ago in Burlington, and later determined not competent to stand trial, should face a new evaluation.
That’s because the earlier evaluation of Aita Gurung, conducted by a prosecution expert who found him insane at the time of the crime, did not employ an interpreter in the man’s native Nepali language.
“That is a fatal flaw of dramatic proportions,” Assistant Attorney General John Waszak argued Wednesday during a Vermont Supreme Court video proceeding streamed on YouTube.
“That calls into question pretty much everything about his methodology, his report, his opinions, his supporting conclusion, his diagnoses,” Waszak told the court.
Gurung is a “limited English-proficient individual” who has required two interpreters for every court appearance, according to the Attorney General’s Office.
The Attorney General’s Office is asking the court to allow a different prosecution expert to evaluate Gurung.
Gurung is accused of using a meat cleaver to kill his wife, Yogeswari Khadka, 32, and seriously injure his mother-in-law, Thulsa Rimal, on Oct. 12, 2017, at their home in the Old North End of Burlington.
Rebecca Turner, supervising attorney of the Vermont Defender General’s appellate division, represented Guring at the hearing. She told the court the prosecution never requested that the expert, Dr. Albert Drukteinis, re-examine or reconsider his analysis with the availability of an interpreter.
“The judge did not ever cut off the state’s ability to present specific evidence how the lack of interpreter fundamentally brought that examination to its knees such that it had to be redone,” Turner argued.
The Vermont Supreme Court took the arguments under advisement Wednesday and will issue a written opinion.
Chittenden County State’s Attorney Sarah George dismissed the charges against Gurung last year after determining she would not be able to counter an insanity defense based on expert evaluations that had been conducted, including one done for the prosecution.
Vermont Attorney General TJ Donovan refiled charges against Gurung last September after Gov. Phil Scott asked him to review that case and two others, prompting critics to say the renewed prosecution was politically motivated.
Chittenden County Judge Samuel Hoar has since ruled Gurung incomptent to stand trial and also rejected the attorney general’s request for a second expert evaluation. Hoar wrote that both the state’s attorney and the attorney general have “concurrent” authority to prosecute the case and do not represent “separate sovereigns.”
“In other words,” the judge wrote, “all that has happened in this case, as a practical matter, is a substitution of counsel and resumption of a prosecution previously dismissed without prejudice.”
He added, “While that is of course the state’s prerogative, it is not a proper basis for allowing a second bite at the evaluation apple. To hold otherwise would both invite expert shopping and raise constitutional concerns not otherwise addressed by the parties.”
Turner told the Supreme Court that Hoar “did not abuse his discretion” in making his ruling.
At one point in the hearing, Waszak, the prosecutor, was asked if he would support having Drukteinis examine Gurung again, but with an interpreter, rather than a different prosecution expert.
“We don’t have confidence in Dr. Drukteinis,” Wascak replied. “That’s because this is a case where, no doubt, the defendant is mentally ill. Whether or not he is seriously mental ill is another matter altogether.”
