A Vermont Superior Court judge in Chittenden County found the commissioner of the state’s Department of Mental Health in contempt of court on Friday, concluding that the department willfully violated a court order by not scheduling an updated competency evaluation for a criminal defendant.
The order is the latest sign of frustration within the criminal justice system over lengthy periods of inaction while awaiting completion of competency evaluations, which in some cases have delayed the resolution of criminal cases for a year or more. The department says the backlog grew as a result of disruptions caused by the Covid-19 pandemic.
The contempt order, in response to the court’s own motion for a finding in January, characterized the department’s unwillingness to schedule a second evaluation of defendant Tek Karki as its “continued obstruction of the criminal justice process.” Karki was charged in 2020 with violating a prevention of abuse order that August.
Vermont law requires a court to order a neutral-party evaluation by the Department of Mental Health if there is reasonable evidence that a person is not competent to stand trial due to a mental illness or defect.
For its part, the department argued, and continues to say, that it had not received a clear order from the court to perform the new evaluation. “When DMH understood this order, the defendant was placed on a waitlist for an evaluation,” wrote the department’s general counsel, Karen Godnick Barber, in an email.
Department staff testified at a January 2023 hearing that 140 evaluations were pending, with a wait time of approximately 12 months. Today, Barber said, that number has been reduced to 63 outpatient defendants with evaluations taking roughly six months.
In her order, Judge Alison Sheppard Arms acknowledged that the decision not to schedule the evaluation of defendant Karki was made by multiple department staff members. However, Commissioner Emily Hawes is ultimately responsible for carrying out the department’s duties as laid out in statute, she wrote. Hawes, in her role as commissioner, was fined $3,000, an amount that would be waived when the evaluation took place.
Arms wrote that the department and the judiciary are supposed to work in partnership to ensure a defendant receives due process under the law, which requires that a person accused of a crime is tried only if they are found to be competent to aid in their own defense.
“The testimony produced in these hearings reveals a system that is at odds with this goal and demonstrates a fundamental breakdown in the partnership between our two entities,” she said in her opinion.
A contempt order from a judge against an administrative official is rare, said Defender General Matt Valerio. In a 35-year career, he said, he has seen only a few filed, those against officials with the Department of Corrections.
The Karki case is far from the only one in Chittenden County, and elsewhere, that has been stymied by the department’s objections to performing competency evaluations.
In a different case, Judge Arms ordered the department in mid-April to evaluate the competency of Averil Beliveau to stand trial within 30 days. Beliveau is accused of slitting her boyfriend’s throat with a knife in March 2020 in the apartment they shared at Bolton Valley Resort.
Beliveau was hospitalized in January of this year with the goal of returning her to competency, according to the order. However, the department appealed the initial order of evaluation several times, arguing there was no clinical reason to believe that her status had changed.
Chittenden State’s Attorney Sarah George estimates that, at any given time, between 40 and 50 cases are on hold in her office, waiting for completion of competency evaluations.
“The case is essentially deemed inactive by the court” during that time, George said. And except for the most serious charges, the defendant is conditionally released into the community. “They’re not being connected to services. So in some cases they may pick up additional charges,” she said.
Requests that the department perform multiple evaluations for competency are generally made for only the most serious cases, in the hopes that ultimately the case might proceed, George said.
Delays in competency evaluations also are challenging for defense attorneys, Valerio said. After six months, it can be difficult to locate people to ensure they attend their evaluation. “And the evidence that you thought was relevant to their competence at the time you asked for the evaluation under any circumstance is going to change in six months to a year,” he said.
Tim Lueders-Dumont, a former deputy state’s attorney in Washington County who is now with the Department of State’s Attorneys and Sheriffs, said any solution to these problems will likely require working through them with the department and the Legislature.
He hopes that some of the measures in one approved bill, S.91, will make a difference. The bill, which is awaiting Gov. Phil Scott’s signature, creates the ability for a court to issue an arrest warrant for someone who does not appear for an evaluation. It also requires the Department of Mental Health and the Department of Aging and Independent Living to report to the Legislature on whether the state needs to develop and institute a formal process for competency restoration.
Under current law, only a forensic psychiatrist is eligible to conduct such evaluations, though S.91 would permit doctoral-level psychologists to be evaluators, with a sunset provision after one year. The bill also calls for a study of allowing examinations to be done by a variety of mental health professionals.
Lueders-Dumont said he looks forward to working with both departments on finding strategies that improve the situation because everyone — defendants and victims — suffers when the system does not work.
“We’ve just got to do a better job,” he said. “All of state government has to do a better job of dealing with these complex cases, and that’s across the board.”