Backlogs at the Montana State Hospital and their impact on criminal prosecutions was front and center in Judge John Parker’s courtroom on Jan. 29.

A case on his docket was Gregory LaPlant, who has been sitting in the Cascade County Adult Detention Center since July, despite court orders that he be admitted to the state hospital for a mental health evaluation within 90 days.

As of Jan. 28, LaPlant was 36 on the waitlist, the same position he’d been in since November, according to the Cascade County Attorney’s Office.

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Because of the delays, LaPlant’s defense attorney moved that the case be dismissed, under multiple state statutes that if a defendant cannot be evaluated for fitness or made fit for criminal proceedings within a reasonable time, the charges have to be dismissed.

In December, Parker had issued an order requiring the director of the Montana Department of Health and Human Services to appear in his court to testify on the backlog at the state hospital and why LaPlant hadn’t been admitted for the court ordered evaluation.

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DPHHS filed a petition for a writ of supervisory control with the Montana Supreme Court arguing that the director has no knowledge of LaPlant’s case and that Parker’s order is a violation of separation of powers in ordering someone from the executive branch to appear in court.

Earlier this month, the Montana Supreme Court dismissed the DPHHS’ petition since Parker had already issued an order allowing Dr. Kevin Flanigan, head of the Montana State Hospital to appear in the director’s place.

During the Jan. 29 hearing for one of LaPlant’s cases, DPHHS said it was presenting Flanigan as a witness it would question for the court.

Parker asked if the department if it was now asking to be a party to the case after asserting that it was not and had “gone to great pains to educate me” as to its non-party status.

He said that if the department was now going to be a party to the case, “that would be quite a game change.”

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DPHHS did not ask to be a party to the case and Parker said that as a courtesy he would allow DPHHS to present and question Flanigan.

After Flanigan answered questions about his professional background, role and challenges at the Montana State Hospital, Parker interrupted to focus on the situation specific to LaPlant and what was being done to get him admitted.

Parker said that in terms of cases in his court with similar delays at the state hospital, in October 2023, there were 64 people on the waiting list and as of Jan. 29, there were 90.

Parker said he anticipated DPHHS was planning to make more testimony that “there’s all kinds of valid reasons why people can’t be made fit,” in a reasonable time, but that it now falls on trial court judges to serve as administrative relief valves and have to “dump” serious cases as a result.

Parker said that is was “hard to fathom” that LaPlant would be admitted to the Montana State Hospital for treatment to be made fit for proceedings within a reasonable time and “it’s worse now. It’s not right.”

It’s a legislative issue, Parker said, but it’s “not acceptable.”

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LaPlant was charged in April 2024 for aggravated assault at the Cascade County jail where he was being held on charges from another case, in which he was charged in the fall of 2023 with criminal possession of dangerous drugs, obstructing a peace officer and failure to have proper lights on a bicycle used at night.

In the 2023 case, LaPlant’s defense attorney notified the court that LaPlant was mentally ill and he appeared to struggle with the rights advisory but said he understood during a hearing, according to the county attorney’s office. His defense attorney requested a mental health evaluation concerning LaPlant’s fitness to proceed and Parker ordered a mental health evaluation in late 2023.

In April 2024, LaPlant was charged with aggravated assault while he was in jail for a bond revocation in the underlying case and LaPlant knocked out his cellmate’s front tooth, according to court documents.

LaPlant’s attorney obtained a psychological evaluation, as did the state, and both found LaPlant unfit to proceed and recommended restorative fitness treatment. Parker found LaPlant unfit to proceed and on Aug. 5, 2024, ordered that LaPlant be admitted to the state hospital for treatment, according to the county attorney’s office.

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During the Jan. 29 hearing in the assault case, Parker asked Flanigan, director of the Montana State Hospital, how long it would take to admit LaPlant.

Flanigan said he couldn’t guess and that they have to accept patients in the order of court order dates, not on types of cases or admittances.

“I do not believe he could be seen in two months,” Flanigan said in response to Parker’s questioning. He said he didn’t think LaPlant could be admitted within three months, “but can’t be certain.”

Matt Robertson, the Cascade County attorney prosecuting the case, said that there had been no progress in moving LaPlant up the waitlist and based on Flanigan’s testimony would take until May or June at the earliest for his admittance.

DPHHS’ attorney asked to continue questioning Flanigan to delve further into the issues, but Parker said that while it was well-intentioned, he believed it would open the door into subjects DPHHS had previously argued he couldn’t get into.

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“Rather than hear why it can’t be, I’ve got to grant [LaPlant] the relief he’s entitled to,” and that it doesn’t matter how series the crimes are, judges are left to dismiss cases because of the delays.

“It’s an absolute human tragedy,” Parker said.

He said DPHHS’ effort to explain the challenges sounded aspirational, but didn’t help address LaPlant’s situation.

Vincent van der Hagen, LaPlant’s attorney, objected to further testimony from DPHHS and said, “if the person is unfit, you can’t prosecute him. This court is in a difficult position, but this is what the Legislature has done…to due process.”

Robertson said that the court already found LaPlant unfit to proceed and had ordered he be admitted to the state hospital for restorative treatment, and that the state could choose a facility, but had not done so, nor had any treatment plan been developed.

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As of Jan. 29, Robertson said LaPlant had been in jail for 196 days waiting for admittance in this case, and they also run into the Constitutional issue of a speedy trial around 200 days.

“Speedy trial is being eroded by the minute,” he said, and that LaPlant was not going to get the mental health treatment or services he deserves since the state hadn’t met its requirements.

“Cascade County is going to suffer the pain inflicted upon it because the state has failed,” to do its duty, Robertson said.

Parker dismissed LaPlant’s 2024 assault charge due to the state hospital delays, but he has two other pending cases, according to the county attorney’s office.

Before LaPlant’s case was heard on Jan. 29, Parker heard a case against Francis Valenzuela for criminal possession of drugs and paraphernalia, disorderly conduct and obstructing a peace officer from July 2024.

Valenzuela also couldn’t get into the state hospital for a mental health evaluation, but was able to enter treatment at the Recovery Centers of Montana in Columbia Falls.

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Prosecutors and his defense were working to get him treated and evaluated to determine his fitness to proceed in the criminal case.

During that hearing, Parker said it’s an “intractable public policy problem” that is increasingly falling to trial court judges to address.

The “wait lists are always unacceptable” and he scheduled a status hearing for Feb. 26 “as a band-aid.”

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It’s the same issue facing the local legal system in the case of Jeremiah Gideon, who is charged with attempted deliberate homicide and assault on a peace officer.

Gideon is accused of striking, and severely injuring, a credit union employee in October and threatening officers who were interviewing him afterward.

Gideon is also on the waiting list for an evaluation at the Montana State Hospital.

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Jan. 8 was the 90th day and he had not yet been admitted for an evaluation and during a Jan. 7 hearing, DPHHS officials told Judge John Kutzman that Gideon was 65th on the waiting list.

Gideon’s defense attorney, Michael Kuntz, said that under state law, if Gideon can’t be made fit within that 90 day window, he has to move that the case be dismissed and Gideon be released.

The Cascade County Attorney’s Office argued that Gideon is a danger to the community and should not be released and that the state’s inability to provide required services makes it impossible for their office to prosecute Gideon, and defendants similarly situated.

On Jan. 17, Kuntz filed a motion to dismiss the charges against Gideon in that case.

The Cascade County Attorney’s Office has 14 days to respond, but is planning to request an extension, according to County Attorney Josh Racki, and then another hearing would be held.

Kutzman civilly committed Gideon to the Montana State Hospital for treatment in August 2024, but within about five weeks, he’d been released and arrested on a new assault charge, then about a week later, had hit a man with his vehicle.

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During the Jan. 7 hearing, Kutzman expressed frustration similar to Parker’s about the delays at the Montana State Hospital and the havoc it was creating in Cascade County criminal justice system.

“This is a legislative problem,” Kuntz, Gideon’s defense attorney said, that the state hospital doesn’t have resources so they cut Gideon loose.

“We don’t hold mentally insane or ill people in jail as a prophylactic,” Kuntz said.

He said the Legislature created the problem and left local law enforcement and courts to figure it out.

“Yes there could be some bad outcomes and that sucks,” Kuntz said, but it might prompt the lawmakers to take action since the courts can only follow existing laws.

“If there’s any case to have a longer period, this is it,” County Attorney Ryan Ball said during Gideon’s Jan. 7 hearing.

Racki, the county attorney, said during Gideon’s hearing that the state has reasons for their challenges and he understands they’re also in a bind, “but in the end, we’re suffering the consequences. We need a solution to stop people getting hurt.”

Kuntz said he agreed with Racki that the “community, the state, paying the price for this,” but the law doesn’t allow an exception for just Gideon.

In the county attorney’s office response earlier this month regarding the DPHHS petition to the Montana Supreme Court, they wrote that DPHHS “needs to enlighten this court of all the pending cases where mental health in Cascade County remains an issue considering the number of cases which have been dismissed by the judges due to the delays in admission at the hospital.”

In their response, the Cascade County office listed multiple cases that have been delayed or dismissed due to delays in admission at the state hospital:

• State of Montana v. Logan Severson, found unfit to proceed Sept. 18, 2024 and awaiting admission to the hospital. Delay is 104 days as of Jan. 3.
• State of Montana v. Justania Javene Windyboy, found unfit to proceed June 11, 2024. Delay is 203 days as of Jan. 3.
• State of Montana v. Gregory Andrew LaPlant, found unfit to proceed June 6, 2024. Delay is 208 days as of Jan. 3.
• State of Montana v. Michael Joseph George, found unfit to proceed July 30, 2024. Delay is 154 days as of Jan. 3.
• State of Montana v. Gregory Andrew LaPlant, found unfit Aug. 5, 2024. Delay is 148 days as of Jan. 3.
• State of Montana v. Jeremiah Gideon, found unfit Oct. 10, 2024. Delay is 87 days as of Jan. 3.

The county attorney’s office listed the cases in its response that have been dismissed due to delays in admission to the state hospital:

• State of Montana v. Shyla Hanway, found unfit on Oct. 20, 2020, based upon a diagnosis of disorganized schizophrenia and the district court dismissed the proceedings with prejudice on March 9, 2021. The delay in the case was 140 days.
• State of Montana v. Shyla Hanway, found unfit on Aug. 31, 2021 and dismissed without prejudice on Nov. 24, 2021. Despite being transferred to the Montana State Hospital, Hanway was not made fit within a reasonable period of time. The delay was 85 days.
• State of Montana v. Shyla Hanway, found unfit on April 13, 2022 and dismissed with prejudice on Dec. 30, 2022. The delay was 251 days.
• State of Montana v. Daniel Joseph Hartzell, found unfit on June 22, 2021 and dismissed without prejudice on Sept. 28, 2021. The delay was 98 days.
• State of Montana v. Timothy Jay Fowler, Jr., found unfit on Aug. 31, 2023, the transport was not done prior to a fitness hearing on Nov. 15, 2023, and Fowler remained 20 on the list. Dismissed in April 2024. Delay in transport to MSH was at least 76 days.
• State of Montana v. Paula Yvette Gopher-Arocha. Gopher-Arocha allegedly violated probation and a petition to revoke was filed.  Gopher-Arocha filed a motion to find her unfit and the court heard testimony from two different evaluators. The court found her unfit and ordered her transported to the state hospital on Sept. 11, 2024. The district court dismissed the proceedings on Dec. 10, 2024, with prejudice based upon the delay in transporting her, finding that the delay violated her rights. She was transported to the state hospital on Nov. 19, 2024 on a Toole County case a week after an unfit finding in that court. The delay in transport in the Cascade County case was 89 days.
• State of Montana v. Christopher Rolfs, found unfit and ordered transport to the state hospital on May 17, 2024. There was a possibility of him being made fit within a reasonable period of time, but he was not transported to MSH as ordered and the district court dismissed the proceedings on Aug. 15, 2024. The delay was 90 days without Rolfs being transported.