Chittenden County State’s Attorney Sarah George has harshly criticized comments made by Attorney General T.J. Donovan about three high-profile cases he refiled last month after George dismissed them in 2019.
George had dropped the cases because the defendants were all found to be legally insane when they committed the respective crimes.
However, Donovan refiled charges in all three cases after Gov. Phil Scott asked him to review the decisions. Donovan ultimately said a jury should decide whether the defendants were legally insane.
“There is no doubt that mental illness is a factor here, but it should be clear that because somebody suffers from mental illness does not mean they are legally insane,” Donovan said in an interview on Vermont Public Radio last month. “Insanity is a legal defense. It’s not a medical diagnosis. It goes in front of a jury to weigh the evidence and to make a determination. That’s how our system works.”
But George wasn’t happy with Donovan’s remarks. Just after the interview aired, she took to Twitter, saying the attorney general got “so many aspects of our laws and our system just … wrong.”
“It feels incredibly disappointing and disrespectful of my judgment and discretion as an elected official and a prosecutor,” George said in an interview Tuesday.
George said she thinks it’s dangerous for Vermont’s top prosecutor to justify “such an incredibly unprecedented decision based on misinformation and misunderstanding of our laws.”
George said it’s completely inaccurate to say that, because insanity is a legal defense, it should be an issue that a jury decides. She said that “every single day, on every single case” prosecutors decide the validity of legal defenses and whether they think they can overcome them.
Evidence of this, she said, is the case of Steven Bourgoin, the wrong-way driver charged with killing five teenagers on I-89. In that case, despite an insanity defense, George filed second-degree murder charges, and Bourgoin was ultimately convicted and sentenced to prison.
Prosecutorial discretion, George said, is “one of the cornerstones of the criminal justice system” — for better or for worse. She said the discretion of prosecutors has helped cause the mass incarceration and systemic racism in the U.S. criminal justice system, but she said it’s also “what can get us out of it.”
“And for another prosecutor to overrule the decision and judgment of an independently elected prosecutor based on no additional information, I guess just a difference of opinion, is completely unprecedented,” she said.
In a statement, Donovan said the Attorney General’s Office has the same authority to file charges as state’s attorneys, an idea known as “concurrent jurisdiction.”
“The Attorney General’s Office, including career criminal prosecutors, reviewed the evidence in each of these cases and concluded that the state can prove these cases beyond a reasonable doubt,” Donovan said. “The court found probable cause in each of these matters, and one court has accepted a guilty plea and has set it for sentencing.”
George said one of her frustrations stems from the hypocrisy inherent in the fact that Donovan has used his own discretion to decide against filing charges in any officer-involved shootings since he took office.
“For the attorney general to imply that insanity as a legal defense is an issue for a jury but then ignore that for all of these officers who present legal defenses that he’s found valid without even charging them, let alone putting them in front of a jury, it’s hypocritical,” George said.
Donovan said in reviews of officers’ use of deadly force, the general practice is for each state’s attorney to conduct a review independent of the Attorney General’s Office.
“Every case is reviewed on its own facts. I stand by my decisions in these cases,” Donovan said. “If a state’s attorney chose to file a charge when I did not, that is their right. I would accept their decision as part of the checks and balances of our judicial system that is predicated on maintaining the public’s trust in our criminal justice system.”
George said prosecutors shouldn’t have to fear that the attorney general will step in and overturn every decision they make. She said that, to her, it seems as if Donovan thinks the only way to find “justice” in these cases is to impose jail time.
She said that’s not necessarily in the best interest of public safety or of “justice.”
“In my 10 years as a prosecutor, that’s actually very rarely what victims want, but we as lay people and community members assume that’s what victims want, and we demand it on their behalf,” she said.
“For the attorney general to publicly give the impression that these individuals are going to be out on the street any day and that the Department of Mental Health isn’t going to do anything to keep us safe, is not accurate. It’s fearmongering in a way that plays into the exact thing that, as a justice system, we should be trying to avoid.”
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