By DAMIEN FISHER, InDepthNH.org
It’s been more than a year since a judge first ordered the competency evaluation for alleged Sununu Youth Development Center abuser Frank Davis, only to have to reissue the order because the evaluation never happened.
Davis, 81, is considered one of the worst offenders so far charged in the YDC criminal case, allegedly raping dozens of children over two decades, children the state placed in his care. As his competency to stand trial is now an open question, Davis cannot be prosecuted and he cannot give testimony in either the criminal case or the hundreds of civil lawsuits in which he is named as an abuser.
David Vicinanzo, one of the lead attorneys in the civil lawsuits representing more than 1,200 victims, thinks the delay might be the point.
“I think it’s a very strange, odd thing. It appears they are letting Frank Davis essentially age out,” Vicinanzo said.
Davis’ competency was not in question until he was scheduled to give a deposition under oath in the civil lawsuits last year. That’s when attorneys for the state raised the matter, claiming that Davis is suffering from dementia. Within days, Davis’ criminal defense team picked up on the idea and filed a motion seeking the evaluation. This effectively blocked Davis from both being deposed, and from being prosecuted.
“Because the state raised this, his lawyer now has legal grounds to prevent his deposition. There’s no evidence of a lack of competency. The only reason it exists is the state raised it in a theoretical way to stop the deposition,” Vicinanzo said.
The matter of Davis’ competency highlights what Vicinanzo sees as the essential conflict for the state that is both prosecuting alleged abusers like Davis in the criminal courts, while at the same time defending itself against the claims of the people Davis abused in the civil lawsuits. Losing one defendant in a criminal case could end up saving the state substantial money in damages in the civil cases.
Davis was indicted in the YDC case more than two years ago. The deadline for the competency order issued last month is in January of 2024. Even if the evaluation clears Davis for trial, he still will not go before a jury for months, at the earliest. Vicinanzo, a former state and federal prosecutor, called the delays unprecedented.
“I’ve never heard of criminal cases being put off two, three, four years. I’ve been involved in the criminal justice system for 35 years. I’ve never seen this at the federal or state level,” Vicinanzo said.
Michael Garrity, spokesman for New Hampshire Attorney General John Formella, said the evaluation process, including the scheduling, is not in the control of prosecutors.
“Our office has not missed any deadlines. In cases where competency is raised, the Office of the Forensic Examiner is responsible for conducting competency evaluations within the Court’s deadlines and preparing their findings as directed by the Court,” Garrity responded via email.
Hillsborough Superior Court — North Judge Will Delker ordered a competency evaluation for Davis on Sept. 14 of last year. The standard order carries a 120-day deadline to have the evaluation completed and the forensic examiner’s report submitted to the court.
As of August of this year, 11 months after the first order was issued, the evaluation had still not been completed. Delker again ordered Davis to be given an evaluation, with another 120-day deadline. That evaluation has not been completed, and it does not appear to even be scheduled. Much of the record involving his mental status is being filed under seal.
Richelle Barb, New Hampshire’s Chief Forensic Examiner, did not respond to a request for comment.
There is a shortage of mental health professionals in the state, said Susan Stearns, executive director of the New Hampshire National Alliance on Mental Illness. Families of people waiting for evaluations have been telling NAMI about prolonged delays, though the organization does not track hard data on this matter.
“We know we have significant workforce issues and COVID exacerbated it,” she said.
Whether it is a workforce issue, a stalling tactic, or something else altogether, Vicinanzo said it adds up to a violation of the legal and constitutional bedrock principle that justice delayed is justice denied.
“‘Justice delayed is justice denied’ is one of the precepts in the Magna Carta. The State constitution says ‘justice shall be prompt or otherwise it doesn’t exist,’” Vicinanzo said.
And justice being denied means Frank Davis is allowed to escape any accountability, Vicinanzo said.
“Davis is a bad guy, he should be prosecuted,” Vicinanzo said.