Forensic evaluators can’t keep up with need

By ADAM DRAPCHO 

The Laconia Daily Sun

Published: 10-03-2023 8:18 AM

PLYMOUTH — Four women were struck on Main Street downtown on March 4, as they stepped from the sidewalk into an unoccupied parallel parking spot to avoid a pile of snow in their path. All four were seriously injured and have since regained their health, but one thing they’ll never have from the incident is justice.

One relative of the crash victims characterizes the situation as a failure of the state of New Hampshire. People with roles in the justice system say this episode is an example of a systemic problem, and there’s no solution in sight.

It doesn’t seem like a mystery, at this point, as to who was operating the car that struck the four women that evening as they were walking near the Flying Monkey theater. Surveillance video from a nearby business captured the horrific moment when the women stepped off the curb into the vacant parking space, and a car, without apparent explanation, veered from the travel lane and into the parking space.

The car didn’t stop. At least, not immediately. After officers had a chance to review more surveillance footage, they alleged the driver continued a short ways down the road and then pulled over, and the driver walked back to the scene, where he denied to a responding officer that he knew anything about the accident. He then walked back to his car, and drove away.

About a week later, Plymouth police reported they had charged Herbert C. Link Jr. with four felony counts of leaving the scene of an accident. His vehicle matched the one seen in the video, had damage consistent with the collision and he lived in the vicinity of the incident.

Before he could be prosecuted on the charges, though, his attorney asked the judge to order a competency evaluation, a determination by specialized doctors that Link had the intellectual capacity to participate in his own defense. The judge made the order, referred the evaluation to the Office of the Forensic Evaluator, and gave the standard 90-day deadline for the evaluation to take place.

In August, it was shared the charges had been dropped, as the evaluation didn’t occur within the specified time frame. Then Link's case came to a tragic end. Despite four hit-and-run charges, Link never lost his driving privileges, as he was never convicted. He continued to drive, and on Sept. 17, a Sunday with pleasant weather, Link was riding his 1984 Kawasaki motorcycle in Wentworth around midday when he apparently lost control while taking a corner. He died later that day from injuries sustained in the crash.

Andrew Simkewicz, the father of one of the victims of the March 4 accident, said it was a failure of the justice system for Link to escape accountability, and his death is due to the state’s inability to enforce its own laws.

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“It’s aggravating. I’m more aggravated now than I was before,” Simkewicz said. His daughter, a student at Plymouth State University, suffered a major concussion and laceration to the back of her head in the crash, had to work through the summer to stay on track to graduate, and still doesn’t feel fully back to normal, though she’s trying to resume a normal life.

When Simkewicz, who lives in Massachusetts, dropped his daughter off at PSU for her fall semester, he stopped at a gas station on his way back to the highway and saw Link, who pulled up to one of the pumps. In an interview after the charges were dropped, Simkewicz asserted the state was gambling with lives by letting Link continue to drive.

“This guy’s dead for no reason at all. This guy should have had his license lifted,” said Simkewicz. “It’s a police failure, it’s a registration failure, it’s a New Hampshire failure. It’s the last thing anybody wanted. We didn’t want any harm to come to this guy, we just wanted him to lose his license for a few months and have to earn it back.

“It makes me sick. I feel awful. I’m glad that my daughter’s alive, but I feel awful for this guy. It’s really frustrating. This poor guy died for nothing.”

Meanwhile, another family is grieving the loss of their son, brother and uncle.

Cathy Brennan said her brother went by “Chris,” as his father was always known as Herbert Link, and that the story that’s been publicized about the incident on March 4 doesn’t accurately portray her brother’s actions.

Link had autism, she explained, and was on disability, though he had made a vocation for himself as a dog walker, often walking as many as eight dogs at once. He was also an athletic person known at local ski areas, and a fan of performing arts, such as at the Flying Monkey.

“He was painted like a terrible person, which he’s not,” Brennan said. “He was a functioning person, a loved person, a very caring person.”

She said the collision with the four young women was “an accident, a very bad accident,” but the kind of accident that any driver could experience. She said her brother stopped afterward, and walked back to check on the people involved. Brennan said when first responders asked Link if he was involved, he understood that as asking if he was hurt. When he answered in the negative, he was told to go home, which he did.

“When that happened, his mind doesn’t work like everyone else’s mind,” Brennan said. “He pulled over, he went to see that everybody was OK. He was so, so upset. He was on sensory overload.”

Brennan said Link remained upset about the hurt he caused to others, and she suspects that distraction played a role in his motorcycling accident. He had been a motorcyclist since his father bought him a mini-bike, Brennan said, and he always rode without a helmet, despite his sister’s urging.

Like Simkewicz, Brennan said she wishes the state had suspended her brother’s license. “Of course, because then he would be alive today,” she said. However, she doesn’t necessarily agree doing so would have represented a just outcome. She sees the incident as nothing more than an accident.

“People have accidents every day; some are unfortunate accidents. If there’s no malice, if there’s no alcohol; he didn’t run off from the scene of the accident,” and he was “terribly sad and upset” that it happened, Brennan said. “He never wanted to hurt a soul.”

“He was a wonderful person,” Brennan said. “He was a kind, beautiful soul. That’s who he was.”

Increasing requests

Lt. Michael Clark, the prosecutor for Plymouth Police Department, is a law enforcement veteran of 42 years, and has been prosecuting for the past 14. He said competency evaluations are nothing new — but the rates at which they have been requested by defense attorneys is increasing.

“I would say that the first several years that I was prosecuting, I may have seen one or two instances that they would recommend a competency evaluation. Now it’s a common thing,” he said. “It doesn’t surprise me anymore when they raise the issue of competency.”

Paula Mattis, director of Medical and Forensic Services for the Department of Corrections, said the situation involving the Plymouth crash is symptomatic of a larger problem. Since 2016, her records show there’s been a 41% increase in the rates of competency evaluations ordered by judges.

“They’re going up nationally, not just in New Hampshire,” Mattis said. “I don’t know why. We need to dig into this data and understand why.”

Mattis has the funding for 3.8 full-time equivalent evaluators, and two administrative positions to support their work. However, she can’t find people to fill the positions, so her office has to make do with two evaluators and one administrative staffer, the same amount it had before the number of referrals started to climb.

They simply have too many orders, and not enough evaluators to perform them, Mattis explained. So, they have to triage their workload by prioritizing evaluations for people who are currently incarcerated, and hope judges will grant extensions for orders involving people who are not experiencing pretrial confinement. Such a request was given for Link’s case, but the judge denied it.

Forensic evaluations, during which trained psychologists or psychiatrists determine whether a person is fit enough to stand trial, include a meeting with the person accused, which can occur either in-person or via video conference, a review of medical records, and some testing for cognitive function. The evaluations can be requested for serious charges, or for simple misdemeanors such as shoplifting.

Mattis said the backlog is no secret. “We’ve been dealing with it for a long time,” she said, and her office tries to notify all parties involved when they think it’s unlikely they’ll be able to meet a deadline.

Mental health professionals are in high demand generally, and the people Mattis needs to fill her positions are particularly hard to find. They need to have a doctorate degree, as well as an internship in this specific field, in order to be qualified.

“This is very highly trained,” Mattis said. “You don’t have forensic psychologists walking the streets of Concord or Manchester looking for jobs. They are in high demand right right now.”

These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.