Kevin “Kelly” Gearhart of Manchester will have her day in court next week to argue why she shouldn’t be incarcerated at the Secure Psychiatric Unit at the men’s prison in Concord after pleading not guilty by reason of insanity to receiving stolen property, attempted theft and escape just over a year ago.
Gearhart, 52, who goes by the name Kelly now that she is transitioning from male to female, has been allotted 30 minutes to plead her case on March 9 at 9 a.m. in Merrimack County Superior Court after filing a habeas corpus petition against Corrections Commissioner Helen Hanks and the Department of Corrections last month.
Gearhart, who is prescribed female hormones and issued women’s underwear while being held in the men’s unit, says she has been harassed, abused and not provided mental health treatment at the Secure Psychiatric Unit.
“Patients in the SPU although not convicted are subject to DNA collection. Patients like the felons are subjected to shackles, tasers, strip searches and extended segregation,” Gearhart said in the state petition. She filed a similar complaint in federal court.
She argued that New Hampshire is in violation of the law by failing to provide mental health services needed to avoid unnecessary institutionalization in the least
restrictive environment. Gearhart is in effect challenging the state’s practice of sending civilly committed people to state prison.
The court ordered Hanks to file an appearance and an answer to Gearhart’s petition. Judge Richard B. McNamara ordered court fees be waived.
The Secure Psychiatric Unit, often just called SPU, is a Department of Corrections unit on the grounds of the men’s prison that holds about 1,400 inmates. The inmates and patients are all men except for a handful of women housed on SPU and some men transitioning to become women in different units.
SPU has come under fire for incarcerating together mentally ill people who haven’t committed a crime, civilly committed patients who are not competent to stand trial and not guilty by reason of insanity and mentally ill convicted criminals.
“I’m feeling good,” Gearhart said on Tuesday. “I’m going to show up in court with bells on. Patients were never supposed to be put in this facility.”
Gearhart said the more she speaks out in the press and the more she files in court, the worse she is treated. On Tuesday she was told she can no longer engage in recreational activity because she is an escape risk, Gearhart said.
She plans another civil lawsuit later to detail the harassment she has endured.
“They call me faggot and bitch. I never get due process,” Gearhart said.
She was still conflicted about the fastest way to obtain release from the Secure Psychiatric Unit and was still considering changing her plea.
Gearhart said the department was trying to “evict” her for speaking out by encouraging her to take back her not guilty by reason of insanity plea and to plead guilty instead to the crimes as a faster way to exit the system.
Gearhart, who only agreed to the not guilty by reason of insanity plea because she hoped to finally get needed mental health treatment, represents herself. She has had some help from the group Advocates for Ethical Mental Health Treatment, but she is not expecting to have legal assistance during the hearing.
Gearhart was civilly committed for five years so she has not been convicted of a crime. The receiving stolen property charge stemmed from being a passenger in a stolen car, she said. And WMUR TV viewers watched her escape in December 2016 captured on video as she walked in an orange jumpsuit wearing shackles and handcuffs. She said the Valley Street Jail van heading for court left her behind in the sallyport.
Gearhart said she was promised she would spend only a few months in SPU before being transferred to the New Hampshire Hospital, the state’s psychiatric hospital, but that has stretched out to more than a year.
Although she is on the waiting list for transfer, she expects that could take at least 18 more months.
The filing says the Secure Psychiatric Unit does not comport with well-understood behavioral health treatment principles.
“They are just making me have to leave this institution to get the treatment I’m supposed to be getting here,” Gearhart said. “They are trying to evict me.”
“I need psychotherapy for gender dysphoria and I need hair removal for my face. They are making me go to the street to seek it,” Gearhart said.
She was diagnosed with gender dysphoria and severe depression with psychotic features and said she receives treatment for personality disorder, but not from professionals who are trained in transgender matters, Gearhart said.
She has tried to commit suicide many times over the years and had hoped this not guilty by reason of insanity plea would finally help get the treatment she needs, Gearhart said.
Jeff Lyons, spokesman for the Department of Corrections, previously said they would have no comment on Gearhart’s lawsuits.
“I can tell you that the NH Department of Corrections doesn’t have the legal authority to ‘take back her (not guilty by reason of insanity plea.)’ Any decisions relating to not guilty by reason of insanity can only be ordered by a court,” Lyons said.
“I believe in December 2017 Director Mattis told you that Ms. Gearhart requested a transfer to New Hampshire Hospital and that she was on the waiting list for placement. However, the transfer can only occur when NH Hospital has an available bed.”