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Editorial: Supreme Court ruling in Kansas insanity defense case could be felt in Vermont

  • HOLD FOR STORY BY ROXANA HEGEMAN MOVING SATURDAY, FILE - In this Aug. 29, 2011 file photo, James Kraig Kahler, who was convicted of capital murder in the fatal shooting of his estranged wife, their two teenage daughters and his wife's grandmother, looks into the spectators gallery in Osage County District Court in Lyndon, Kan., during a break in his sentencing hearing. No one disputes Kahler killed his wife, his two teenage daughters and his wife’s grandmother in 2009. But what had been an open-and-shut death penalty case was upended this week by the U.S. Supreme Court when it decided to consider whether Kansas had unconstitutionally abolished Kahler’s right to use insanity as a defense. Its ruling could have far-reaching implications for mentally ill defendants across the nation. (Thad Allton/The Topeka Capital Journal via AP, File)

Published: 10/12/2019 10:10:22 PM
Modified: 10/12/2019 10:10:07 PM

The U.S. Supreme Court opened its new term last week by hearing arguments about whether states may abolish the insanity defense. Although the case the justices considered originated in Kansas, its resolution could reverberate as far away as Vermont, where a high-profile murder case involving an insanity defense led to intervention this summer by Gov. Phil Scott.

Kansas did away with the insanity defense in 1995, meaning that criminal defendants may no longer argue that, because of mental illness, they were unable to distinguish between right and wrong at the time the crime was committed.

In the case before the high court, a man convicted of killing four family members in 2011 was not permitted to argue that he was not guilty by reason of insanity even though an expert testified at his trial that he was so depressed at the time that he could not help himself.

His lawyer, Sarah Schrup, told the justices that a jury should have been allowed to make the determination and that barring the insanity defense was a sharp departure from the American legal tradition, The New York Times reported. “For centuries,” she said, “criminal culpability has hinged on the capacity for moral judgment, to discern and to choose between right and wrong. The insane lack that capacity.”

Indeed, English law has recognized some form of the insanity defense since the Middle Ages, and it was recognized in all jurisdictions in the United States until Kansas, Idaho, Montana and Utah abolished it toward the end of the last century.

Which brings us to Vermont.

In May, Chittenden County State’s Attorney Sarah George dismissed all charges against Aita Gurung, accused of killing his wife with a meat cleaver and severely wounding his mother-in-law shortly after being released from the University of Vermont Medical Center after a weeklong mental health evaluation. George explained that because both a court-appointed expert and one hired by the state had determined that Gurung was psychotic at the time of the attack, she would be unable to rebut his planned insanity defense and was therefore ethically obliged to drop the case.

Gov. Phil Scott then took the extraordinary step of intervening in a criminal case. He asked Attorney General TJ Donovan to review George’s decision to drop charges in the Gurung case and two others involving the insanity defense.

In due course, Donovan reversed George’s judgment and refiled murder charges against Gurung, which are now pending.

Gurung’s lawyer, Sandra Lee, was quick to conclude that since no new facts had come to light since George dismissed the charges, Donovan’s decision was political — something he adamantly denied. But the fact that Donovan is considering challenging Scott next year if the governor seeks another term does raise the specter that Scott’s letter seeking Donovan’s review of the cases was intended to put the attorney general on the spot and he reacted in a way calculated to shield his political future from the public outrage fueled by Scott’s intervention.

A more charitable interpretation is that Scott really does not understand the moral, ethical and legal issues involved, despite George’s best efforts to explain them. “From a layperson’s perspective, and certainly as Governor,” he wrote to Donovan in asking for the review, “I’m at a loss as to the logic or strategy behind this decision to drop all charges.”

We suspect that much of the public shares Scott’s confusion, but the elements are not fundamentally hard to grasp. Sometimes people who commit heinous crimes are not responsible for their conduct because they suffer from such acute mental illness that they cannot distinguish right from wrong.

Society has long recognized that those individuals should receive treatment for their illness rather than punishment. And prosecutors are obliged not to bring cases to trial that they believe cannot be proved beyond a reasonable doubt.

Scott has also said that he believed the Legislature would review the insanity defense in the future. If it does, perhaps it can be guided by the Supreme Court’s decision in the Kansas case, expected next year.

We hope that it is one that honors a long-established and well-grounded legal principle.




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