Vermont Attorney General TJ Donovan will have to proceed in the prosecution of a man accused of killing his wife with a meat cleaver in Burlington without a new psychiatric exam to challenge an insanity defense, according to a judge’s recent ruling.
The decision by Judge Samuel Hoar Jr. issued last week is a setback in the murder case against Aita Gurung, which Donovan refiled after it was dismissed in June 2019 by Chittenden County State’s Attorney Sarah George.
George said at that time she did not have evidence to rebut an insanity defense because the state’s own expert had determined Gurung to be insane at the time of the killing.
Gov. Phil Scott requested a review of that decision as well as two other dropped cases for charges of murder and attempted murder in which George said she could not rebut insanity defenses.
Donovan decided to refile the murder charge against Gurung two months later, in September 2019, taking the unusual move of stepping into a case after it had been dismissed by a county prosecutor. He also refiled charges in the other two dropped cases.
The Attorney General’s Office had been pushing for a second psychiatric evaluation by a different expert than the one who had earlier provided the opinion to George.
THREAD: This week the Court denied the Attorney General’s request for another “mental examination” in one of the cases they re-filed after my office dismissed. The Courts lengthy legal analysis mirrors the argument my office made when we announced our difficult decision.
— Sarah Fair George (@SarahFairVT) December 15, 2021
According to court filings, Gurung used a meat cleaver to kill his wife, Yogeswari Khadka, 32, on Oct. 12, 2017. He also seriously injured his mother-in-law, Thulsa Rimal, at their home in the Old North End of Burlington, according to charging documents.
Hoar, in his 14-page ruling against the second psychiatric evaluation, didn’t buy the attorney general’s argument that a new prosecutorial agency refiling the charge constituted a new case and therefore entitled him to a new evaluation of Gurung by a different expert.
“To conclude otherwise would be an invitation to abuse,” Hoar wrote. “In any prosecution in which the State’s expert rendered an unfavorable opinion, the prosecutor could dismiss without prejudice to allow another prosecutor to try again.”
George took to Twitter on Wednesday to blast the decision to refile the case, deeming the judge’s ruling “foreseeable & avoidable, not to mention costly and time consuming.”
“The Courts (sic) lengthy legal analysis mirrors the argument my office made when we announced our difficult decision,” she wrote.
George, who has carved a reputation as a progressive prosecutor, said her office “remains hopeful & ready to collaborate with the AGO on a path forward to address the inadequacies in our mental health system to keep our communities safe.”
In an interview on Wednesday, Donovan said his office was considering whether or not to appeal and would come to that decision shortly.
“We’re ready to move forward and proceed with this case,” Donovan said. “This is a serious case, and it’s a case that we think is important to continue to pursue, and that’s what we’re going to do.”
The Courts decision was foreseeable & avoidable, not to mention costly and time consuming. My office remains hopeful & ready to collaborate with the AGO on a path forward to address the inadequacies in our mental health system to keep our communities safe.
— Sarah Fair George (@SarahFairVT) December 15, 2021
George told VTDigger on Wednesday she believes that more resources need to be put into the Department of Mental Health so mentally ill people who pose a public safety risk can remain in the department’s custody long term, instead of using the criminal legal system to fill the gaps.
“Right now they claim they don’t have the capacity to do that even though they have done it on multiple homicide cases in the past,” she said.
Part of the problem, George said, is that the mental health and criminal justice systems intersect.
“We rely almost entirely on the criminal legal system to provide mental health services to people who commit crimes and very little on the Department of Mental Health to address those underlying mental health concerns so the crime doesn’t continue to happen,” George said.
The Vermont Supreme Court ruled in December 2020 that the Attorney General’s Office was entitled to a hearing to make its case for a new psychiatric evaluation of Gurung.
The Attorney General’s Office has contended, among other points, that the earlier evaluation of Gurung by George’s prosecution expert did not employ an interpreter in his native Nepali language.
That led to a hearing earlier this year.
Vermont Defender General Matthew Valerio, whose office is representing Gurung, declined to comment late Wednesday, saying he had not read the decision yet.
In one of the other cases George dropped after saying she couldn’t rebut an insanity defense, Donovan filed an attempted second-degree murder charge against Veronica Lewis, alleging that she shot Darryl Montague, a firearms instructor, during a lesson in 2015 in Westford.
Lewis has since pleaded guilty to state and federal charges in the case and has been sentenced to a total of 10 years in prison, with credit for time served.
In March, Donovan also refiled a murder charge against Louis Fortier, who has since pleaded not guilty to the offense. The case remains pending.
Fortier is accused of stabbing and killing Richard Medina, 43, on the Church Street Marketplace in Burlington on March 29, 2017. Court filings accuse Fortier of stabbing Medina in the head, neck and back at the intersection of Church and Cherry streets.
The next hearing in Fortier’s case is set for Dec. 22.
