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From Seven Days:

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

“The state is required to dismiss the charges under our laws,” says Toor, who’s been a judge for 14 years and now presides over Addison County’s criminal division. “And yet, we don’t 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 it’s 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 theHowardCenter 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 theBrain 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 they’re 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 sheriff’s vehicles with his monster tractor? It was widely reported at the time that Pion was enraged about his recent marijuana arrest. But Pion’s 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 judiciary’s decades-old computer system doesn’t gather data on defendants’ mental status or the reasons why some are deemed incompetent.

Defender General Matt Valerio, who oversees Vermont’s public defenders, admits he’s 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 Vermont’s public defenders are representing brain-injured defendants, he says, those cases aren’t coming to his attention.

Last year, the legislature asked the Vermont Department of Corrections to compile a report on the number of inmates suffering from a “severe functional impairment,” which can include dementia, mood or personality disorders, psychoses and TBIs. As of September, 121 offenders in state custody were known to have severe functional impairment. Only two were on the list for a known TBI.

But that same report also indicates that although the number of TBI cases looks small, “It may be because it’s not commonly assessed in screenings, and patients may not report trauma that they don’t associate with current presentation.”

Screening for TBIs, especially mild ones, is difficult, expensive and not done routinely by the Department of Corrections or Probation and Parole. And TBI experts suggest that many inmates don’t realize that the root cause of their antisocial behavior is a blow to the head they received years ago.
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