Why Brain -Injured Defendants in Vermont Often Go Free

Superior Court Judge Helen Toor cant say whether shes seeing more defendants entering her Middlebury courtroom with a traumatic brain injury or if shes just noticing them more. She can say, however, that if the accused is found incompetent to stand trial because of a TBI, theres not a lot she can do with them.

The state is required to dismiss the charges under our laws, says Toor, whos been a judge for 14 years and now presides over Addison Countys criminal division. And yet, we dont have a process for monitoring that person to try to avoid future criminal conduct.

In the last few months, Toor has had to dismiss charges against defendants accused of aggravated assault and repeated stalking because they had TBIs that might explain their inappropriate or violent behavior. In a third case, Toor has yet to rule on the competence of a brain-injured defendant charged with the sexual assault of a child.

This situation differs from other cases involving defendants deemed by the court to lack a rational understanding of the charges, proceedings and their potential consequences. If a defendant has a severe mental illness, such as schizophrenia, a judge may commit that individual to a psychiatric ward for treatment. If its effective, he or she may be found competent to stand trial down the road.

A judge can also issue an order of nonhospitalization, putting the person under the supervision of a state-funded community mental health facility, such as the HowardCenter in Burlington or the Counseling Service of Addison County. Defendants with developmental disabilities, such as Down syndrome, can be placed under the supervision of the Department of Aging and Independent Living, which presently supervises about 30 Vermonters who have committed violent and/or sexual offenses, according to Commissioner Susan Wehry.

But a TBI is neither a mental illness nor a developmental disability. As a result, Toor asked the Brain Injury Association of Vermont (BIA-VT) to visit her court last week to provide guidance and training to Addison County attorneys who are trying to figure out how to deal with brain-injured defendants once they leave the courtroom.

How common are TBI victims in the criminal justice system? Brain injury experts say theyre much more common than the public or court personnel realize.

Remember Roger Pion, the Newport farmer who became an internet folk hero last year for crushing seven Orleans County sheriffs vehicles with his monster tractor? It was widely reported at the time that Pion was enraged about his recent marijuana arrest. But Pions defense attorney, David Sleigh, now confirms that the court ruled his client was not competent to stand trial, in part because of a history of concussions.

The Office of Court Administrator cannot say how common such cases are. In 2012, there were 772 cases statewide involving the potential to include a competency issue. But the judiciarys decades-old computer system doesnt gather data on defendants mental status or the reasons why some are deemed incompetent.

Defender General Matt Valerio, who oversees Vermonts public defenders, admits hes unaware of the extent of the problem. In his 25 years in the criminal justice system, Valerio says that cases involving defendants with obvious TBIs have been few and far between. If Vermonts public defenders are representing brain-injured defendants, he says, those cases arent coming to his attention.

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Why Brain -Injured Defendants in Vermont Often Go Free