Sunday, November 20, 2016

Whose Line is it Anyway?

I'm Mr. Seagull and I neither
approve nor disapprove of this summary. 
I'm just a bird with an expression that 
vaguely resembles the famous 
McKayla Maroney shot from 2012
State v. B.C., 2016 VT 66

By Andrew Delaney

Once a criminal defendant has been found incompetent or insane, what’s the State’s Attorney’s role in the case, if any? 

This is kind of a weird appeal. It stems from the State’s Attorney’s attempt to be heard on motions for continued treatment after mental-health orders had expired. It’s kind of a “we’re not-done-with-you-yet!” appeal. But the SCOV, in proper judicial fashion, says, “Oh, we’re done.” 

DH was charged with simple assault on a police officer and resisting arrest. After DH’s competency and sanity was evaluated, the parties agreed that he was insane at the time of the offense and to a 90-day order of non-hospitalization (ONH) under this statute (subsection 17 if you’re curious). Because a personal injury was involved, there had to be a hearing before DH was discharged from the care and custody of the Commissioner of Mental Health. 

A few days before the ONH was set to expire, the State’s Attorney filed a request for a hearing to continue treatment and asked for DH’s treatment records. The trial court said only the Department can request to extend treatment and denied the request.

BC’s story followed a similar course at the beginning. He was charged with simple assault and aggravated disorderly conduct. He was found incompetent to stand trial and an agreed-upon ONH issued, also with a hearing-before-discharge provision.

But then BC got into a bunch of trouble based on his conduct at the nursing home he was staying at. Bail was set and he got sent to prison. The State filed a motion for emergency hospitalization in the first case and the Commissioner of Mental Health moved to dismiss.

Before there was a hearing, the ONH in BC’s case expired. The trial court denied the State’s motion and granted the Commissioner’s motion to dismiss because, again, the State’s Attorney ain’t got the standing—only the Commissioner gets to move to extend an ONH.

The State appeals, arguing that the court shouldn’t have denied its motions, and throws in a claim that the “Department of Mental Health unlawfully discriminates in the case of incompetent defendants by treating them in disparate fashion based upon the cause of their disability.”

The SCOV points out that there are two paths to the mental-health-laws-applicability forest: Title 18 and Title 13. Under Title 18, a person not in criminal hot water can enter the mental health system voluntarily or involuntarily. Under Title 13, when competency, sanity, or both are in play, a person can also enter the mental-health system. Then there are a few statutes that apply to hearings on the issues of insanity and incompetency (this one, this one, and this one).

Regardless of the path, an order has the same force and effect. More or less, in the criminal context, things get kicked over to the Commissioner of Mental Health at that point. The outside limit for an order is 90 days.

The State’s attorney makes a pitch that one of the statutes (this one) “provides an opportunity for the State’s Attorney to contest the expiration of a treatment order when the Department is not seeking an order of continued treatment at the expiration of a ninety-day order.” This is because, the State’s Attorney argues: (1) there’s the provision allowing for a hearing when personal injury is alleged; and (2) there’s also a provision that gives the State’s Attorney the right to notice of a proposed discharge, the right to enter an appearance, and the right to have the patient examined and the examiner to testify during the discharge proceeding.

As the SCOV frames it, the central issue is whether a “discharge from custody,” which requires a hearing if ordered, includes the expiration of an order (which can only be up to 90 days). Put another, hopefully easier-to-understand way, the issue is whether a discharge hearing is required when the order expires at the end of its allowed time. The SCOV holds—if I’m understanding this correctly—that the hearing is required only for early discharge from the Commissioner’s custody.

The SCOV acknowledges that the statutory mental-health-and-criminal-proceedings interplay “is not a paradigm of clarity,” but points out that “it is quite clear that the State’s Attorney is not empowered to seek an order of continued treatment.” Only the Department of Mental Health has that power.

First, the SCOV reasons that while the purpose of the hearing might be to give the State’s Attorney an opportunity to take action on the criminal charges, it’s pretty clear that the legislature left sole authority to seek continued treatment with the Commissioner—the old too-many-cooks-in-the-kitchen doctrine.

Second the SCOV points to this statute, which provides that if the Commissioner thinks more treatment is necessary, then the Commissioner has to file a motion—not the State’s attorney. The SCOV reasons that when an order expires on its own terms and the Commissioner hasn’t sought an extension, ain’t no “proposed discharge”—the order just expires. And that’s that.

And so, the SCOV explains, the “State’s Attorney is entitled to notice of and to contest a ‘proposed discharge’ by the Commissioner, not a decision by the Commissioner to let an order expire without seeking a continued order, as was the case here.” The SCOV further notes the potential community-safety concern, and opines that if the reason the Commissioner lets the order expire is because the defendant has regained competency, then the State’s Attorney can go ‘head, refile charges, and seek conditions of release.

The SCOV notes that in the case of an insane defendant, then the criminal part of the case is over, and that ends up in the family division.

On the State’s Attorney’s discrimination claims—not brought up below, not gonna get into it here.

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