State v. Jordan Lawyer

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: Reporter@vtcourts.gov or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2026 VT 42
No. 25-AP-259
State of Vermont Supreme Court
On Appeal from
v. Superior Court, Franklin Unit,
Criminal Division
Jordan Lawyer June Term, 2026
Alison S. Arms, J.
Charity R. Clark, Attorney General, and Arthur O. Brown and Zachary J. Chen, Assistant
Attorneys General, Montpelier, and Bram W. Kranichfeld, Franklin County State’s Attorney,
St. Albans, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and A. Alexander Donn, Appellate Defender, Montpelier,
for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton, Waples, Nolan and Drescher, JJ.
¶ 1. REIBER, C.J. In this interlocutory appeal, defendant Jordan Lawyer argues that
the trial court erred by excluding defense counsel from his upcoming competency examination.
We hold that a competency examination is not a critical stage of proceedings where the Sixth
Amendment right to presence of counsel attaches, and the trial court did not abuse its discretion to
exclude counsel. We affirm.1
1 Under Vermont law, defendants are presumed competent unless they prove
incompetency by a preponderance of the evidence. 13 V.S.A. § 4817(a). Competency relates
exclusively to a defendant’s present capacity to stand trial, which is separate from an insanity
defense that requires analyzing a defendant’s mental state at the time of the alleged offense. State

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¶ 2. In October 2024, the State of Vermont charged defendant with second-degree
murder, first-degree aggravated domestic assault, eluding law enforcement while operating a
vehicle in a grossly negligent manner, and aggravated assault. The State alleges that defendant
attacked his parents with a baseball bat, killing his father and wounding his mother, before fleeing
in his mother’s car and ultimately colliding with a game warden’s truck.
¶ 3. Later that month, the trial court ordered a neutral psychiatric examiner, Dr. Keelin
Garvey, to perform a competency examination. After interviewing defendant on three separate
dates, Dr. Garvey reported she was unable to form an opinion as to his competency without
administering “psychometric” testing. Dr. Garvey advised the court that defense counsel must be
excluded from testing, stating that a third-party presence would violate the copyright and her
professional ethics. She asserted that even disclosing the identity of the tests would impair the
validity of the results. Dr. Garvey took the position that she would have to submit her final report
without a competency finding if her concerns were not honored.
¶ 4. Defendant objected, insisting on his attorney’s presence and asserting he had the
right to presence of counsel at the examination under the Sixth Amendment of the U.S.
Constitution and Chapter 1, Article 10 of the Vermont Constitution. The State countered that the
examination was not a critical stage of the prosecution and the right did not attach. The trial court
denied defendant’s motion and barred defense counsel from the examination, concluding there was
no constitutional right to counsel’s presence. Defendant moved under Vermont Rule of Appellate
Procedure 5.1(a) for permission to take an interlocutory appeal of the trial court’s decision, which
we accepted.
v. Gurung, 2025 VT 52, ¶ 11 n.2, __ Vt. __, 346 A.3d 459; see also P. Robinson, 2 Crim. L. Def.
§ 208(a) (2026) (“The insanity defense . . . differs in that it considers the defendant’s mental
capacity at the time of the offense and serves to fully exculpate the defendant for his conduct,
rather than simply to bar his trial.”).

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¶ 5. We review questions of constitutional law de novo. State v. Green Mountain
Future, 2013 VT 87, ¶ 15, 194 Vt. 625, 86 A.3d 981 (“We review the trial court’s conclusions of
law, particularly its constitutional decisions, de novo.”). We will reverse a trial court’s exercise
of discretion regarding procedural rulings if the defendant shows “the court’s discretion was either
totally withheld or exercised on grounds clearly untenable or unreasonable.” State v. Merchant,
173 Vt. 249, 255, 790 A.2d 386, 392 (2001) (quotation omitted) (reviewing denial for competency
evaluation for abuse of discretion).
¶ 6. The Sixth Amendment right to counsel, applicable to the states through the
Fourteenth Amendment, is similar to the right conferred by the Vermont Constitution.2 State v.
Porter, 164 Vt. 515, 518, 671 A.2d 1280, 1282 (1996) (stating that we have “consistently held that
the right to representation by counsel found in Chapter I, Article 10 of the Vermont Constitution
confers a right similar to the federal Sixth Amendment right”). The right attaches at all “critical
stages” of a criminal proceeding and “encompasses counsel’s assistance whenever necessary to
assure a meaningful defen[s]e.” United States v. Wade, 388 U.S. 218, 224-25 (1967) (quotations
omitted). We have further identified critical stages as “ ‘any stage of the prosecution, formal or
informal, in court or out, where counsel’s absence might derogate from the accused’s right to a
fair trial.’ ” In re Carter, 2004 VT 21, ¶ 62, 176 Vt. 322, 848 A.2d 281 (quoting Wade, 388 U.S.
at 226).
¶ 7. The right may attach at pretrial proceedings. Id. ¶ 66; Estelle v. Smith, 451 U.S.
454, 469 (1981) (observing longstanding recognition of “vital need for a lawyer’s advice and aid
2 Defendant cites to Article 10 of the Vermont Constitution in support of his argument that
he has the right to presence of counsel at the competency examination. But defendant does not
argue that a different analysis applies under the Vermont Constitution. See A.B. v. S.U., 2023 VT
32, ¶ 10, 218 Vt. 123, 298 A.3d 573 (“The Vermont Constitution may provide greater protection
than analogous provisions in the U.S. Constitution, but the proponent of such an argument bears
the burden of explaining how or why the Vermont Constitution provides greater protection.”
(quotation omitted)).

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during the pretrial phase” (quotation omitted)). The Supreme Court of the United States has
recognized that the opportunity to consult with counsel about a pretrial competency examination
is a critical stage in the proceedings against a defendant distinct from presence of counsel at the
exam itself. Estelle, 451 U.S. at 470-71. In a footnote, the Supreme Court acknowledged that:
[T]he issue before us is whether a defendant’s Sixth Amendment
right to the assistance of counsel is abridged when the defendant is
not given prior opportunity to consult with counsel about his
participation in the psychiatric examination. . . . Respondent does
not assert, and the Court of Appeals did not find, any constitutional
right to have counsel actually present during the examination. In
fact, the Court of Appeals recognized that an attorney present during
the psychiatric interview could contribute little and might seriously
disrupt the examination.
Id. at 470 n.14 (quotation and citation omitted).
¶ 8. Many jurisdictions, federal and state, have since relied on this footnote in
concluding that defendants do not have the right to presence of counsel during pretrial competency
examinations. See State v. Martin, 950 S.W.2d 20, 26 (Tenn. 1997) (recognizing “a substantial
majority of state and federal jurisdictions” hold defendants do not have right to counsel during
competency examinations); accord T. Travers, Right of Accused in Criminal Prosecution to
Presence of Counsel at Court-Appointed or Approved Psychiatric Examination, 3 A.L.R.4th 910
(1981) (listing jurisdictions that hold defendants are “not constitutionally entitled to the presence
of counsel at a court-ordered or -approved psychiatric examination”).3 Under this view, the
defendant’s Sixth Amendment right to counsel and due process rights are not violated by court-
ordered competency examinations. See Seng v. Commonwealth, 839 N.E.2d 283, 293 (Mass.
2005) (recognizing defendant is “adequately protected” during competency examinations because
if found incompetent they will not stand trial; if found competent their statements made during
3 While some jurisdictions use the term “psychiatric examination” to encompass both
competency examinations and insanity-defense examinations, our use of the term here is limited
to the competency context. Whether the right to presence of counsel attaches at an insanity-defense
examination is not before us on appeal.

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examination are inadmissible at trial (quotation omitted)); State v. Hardy, 325 S.E.2d 320, 322
(S.C. 1985) (holding court-ordered competency examination is not critical stage “because
procedural steps are not taken and no events take place that are likely to prejudice the defense”).
Now, we join them.
¶ 9. We recognize that the Sixth Amendment right to counsel “depends primarily on the
possibility of prejudice and unfairness in the proceedings and the ability of the presence of counsel
to protect against such prejudice and unfairness.” Carter, 2004 VT 21, ¶ 62 (citing favorably
Supreme Court cases stating same). But there is no risk of prejudice at the competency
examination. These examinations are nonadversarial and not designed to determine the ultimate
question of a defendant’s guilt; they have a “limited, neutral purpose.” Estelle, 451 U.S. at 465;
see 8B C. Wright & A. Miller, Federal Practice and Procedure § 2236 (3d ed. 2026) (observing
that psychiatric examinations are not “adversarial but scientific”). The trial court must conduct a
competency hearing and order an exam “if there is ‘reason to believe that the defendant may be
incompetent to stand trial’ ” to protect a defendant’s due process rights. State v. Beaudoin, 2008
VT 133, ¶ 15, 185 Vt. 164, 970 A.2d 39 (alteration omitted) (quoting 13 V.S.A. § 4817(b)); see
id. ¶ 8 (citing Pate v. Robinson, 383 U.S. 375, 385 (1966)) (“Trying an incompetent defendant
deprives [them] of [their] due process right to a fair trial.”); 13 V.S.A. § 4814 (permitting court to
order examination).
¶ 10. Defendant’s rights are protected under Vermont law. After the exam, the
examination statute provides counsel the opportunity to review the examination results, cross-
examine psychiatric witnesses, and introduce defense witnesses. 13 V.S.A. § 4816(f) (stating
admission of psychiatrist report ordered under § 4814 “shall not preclude either party . . . from
calling the psychiatrist or psychologist who wrote the report as a witness or from calling witnesses
or introducing other relevant evidence”); see also State v. Boyajian, 2022 VT 13, ¶ 35, 216 Vt.
288, 278 A.3d 994 (explaining that “a defendant whose competency has been called into question

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has a constitutionally based right to hire, with state funding, a defense-retained mental health
expert” to help their defense and avoid “erroneous determination of competency” (quotation
omitted)); Hardy, 325 S.E.2d at 322 (rejecting defendant’s argument that he had right to presence
of counsel at competency examination in part because “defense counsel had ample opportunity to
cross examine the psychiatrist”). The exam is expressly noted in the case law as a “neutral
evaluation” as distinguished from an expert examination retained by either party. Boyajian, 2022
VT 13, ¶ 36. Thus, there is no prejudice arising from the exclusion of counsel at the competency
examination and the right to presence of counsel does not attach.4
¶ 11. Numerous courts have considered that a third party’s presence at a psychiatric
examination “could contribute little and might seriously disrupt the examination.” Estelle, 451
U.S. at 470 n.14; accord United States v. Baird, 414 F.2d 700, 711 (2d Cir. 1969) (“In fact, the
presence of a third party, such as counsel or a stenographer, at such examination tends to destroy
the effectiveness of the interview.”); Wright & Miller, supra, ¶ 9 (observing attorney’s presence
“might disrupt, or defeat the purpose of, the examination”—a concern that “may be heightened
during a psychiatric examination”). The risk of disruption is significant; an ineffective
examination may seriously impair the trial court’s ability to fulfill its statutory and constitutional
obligation to determine a defendant’s competency, Boyajian, 2022 VT 13, ¶ 27, and cut against
the State’s interest in an effective system of justice and the defendant’s right to be tried only while
4 We emphasize that while the competency examination itself is not a critical stage, the
“significant decision of whether to submit to the examination” is. Estelle, 451 U.S. at 471. This
distinction is aligned with those drawn by other jurisdictions that similarly conclude that the
competency examination is not a stage at which the Sixth Amendment right to presence of counsel
attaches. See, e.g., Commonwealth v. Baldwin, 686 N.E.2d 1001, 1005 (Mass. 1997) (“[W]e
concluded that the decision to undergo psychiatric evaluation is a critical stage of the criminal
process, entitling a defendant to assistance of counsel, but that the psychiatric interview itself is
not a critical stage.”); State v. Whitaker, 2022-Ohio-2840, 207 N.E.3d 677, at ¶ 137 (citing United
States v. Byers, 740 F.2d 1104, 1118-21 (D.C. Cir. 1984) (plurality opinion) for proposition that
“although the decision to undergo a psychiatric evaluation is a critical stage, the interview itself is
not”).

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competent. We do not agree that defense counsel’s participation even in a strict observational
capacity mitigates such risk, because as then-Circuit Judge Scalia joined by then-Circuit Judge
Ginsburg recognized:
[e]ven if counsel were uncharacteristically to sit silent and interpose
no procedural objections or suggestions, one can scarcely imagine a
successful psychiatric examination in which the subject’s eyes move
back and forth between the doctor and his attorney. Nor would it
help if the attorney were listening from outside the room, for the
subject’s attention would wander where his eyes could not. And the
attorney’s presence in such a purely observational capacity, without
ability to advise, suggest or object, would have no relationship to the
Sixth Amendment’s “Assistance of Counsel.”
Byers, 740 F.2d at 1120. Of course, this is not to create a bright-line rule that counsel should
always be excluded during competency examinations. As the trial court recognized, in certain
cases there may be benefits to counsel’s presence stemming from the rapport between counsel and
a defendant, such as helpfully redirecting and facilitating examinations of a defendant who might
otherwise not readily participate. Counsel’s presence may smooth the process, but given our
conclusion that the Sixth Amendment right to presence of counsel does not attach at competency
examinations, the trial court has the discretion to permit or prohibit counsel at the examination.
¶ 12. Nonetheless, defendant argues our reasoning in Carter, that the right to counsel is
not limited to proceedings with an “adversary character,” necessarily compels us to recognize a
right to presence of counsel at competency examinations. 2004 VT 21, ¶¶ 60-62 (quotation
omitted). But Carter involved a presentence investigation (PSI) report. The PSI carried distinctly
different possible consequences. PSI interviews can elicit information about past criminal conduct
not otherwise protected by statute. By contrast, competency evaluations do not involve such
information and are protected by statute. Id. ¶ 59; 13 V.S.A. § 4816(d). Given the limited type
and scope of information addressed at competency examinations, and because Vermont’s
competency statutes establish a specific framework that goes beyond Daubert alone, we hold the
trial court here did not err by concluding counsel’s presence was not necessary either for effective

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participation or to avoid prejudice. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589-
92 (1993) (establishing test for expert testimony admissibility, which requires showing scientific
evidence is relevant and reliable); 13 V.S.A. § 4814(a).
¶ 13. Next, defendant contends that without counsel’s presence, any statements he makes
may later be used to obtain admissible evidence against him, violating his right against self-
incrimination and prejudicing his right to a fair trial. In support, defendant compares Federal Rule
of Criminal Procedure 12.2(c)(4) and 13 V.S.A. § 4816(d). Federal Rule 12.2(c)(4) prohibits
admitting a statement a defendant made during examination, expert testimony based on the
statement, and “other fruits of the statement” to prove their guilt or to impeach them. Cf. 13 V.S.A.
§ 4816(d). Unlike Federal Rule 12.2(c)(4), however, § 4816(d) does not expressly prohibit a
statement’s fruits. Defendant contends that this difference would allow law enforcement to use
statements made during examination to discover evidence later admissible at trial.
¶ 14. But the Fifth Amendment privilege against self-incrimination protects against
defendant’s concern. U.S. Const. amend. V (“No person . . . shall be compelled in any criminal
case to be a witness against himself . . . .”). We have recognized that the privilege applies in court-
ordered competency examinations. State v. Bushey, 147 Vt. 140, 144, 513 A.2d 1177, 1180 (1986)
(citing Estelle, 451 U.S. at 467); see State v. Morale, 174 Vt. 213, 215, 811 A.2d 185, 187 (2002)
(“The Fifth Amendment privilege against self-incrimination is violated when a defendant is
compelled to produce testimony against himself.”). While § 4816(d) does not expressly prohibit
using a defendant’s statements made during examination, that protection is secured by the Fifth
Amendment, which requires neither an enabling statute nor grant of use immunity to be effective.
See, e.g., Adams v. Maryland, 347 U.S. 179, 181 (1954) (“Indeed, a witness does not need any
statute to protect him from the use of self-incriminating testimony he is compelled to give over his

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objection. The Fifth Amendment takes care of that without a statute.”).5 Thus, a defendant’s
statements made during a competency examination cannot be used against them unless the
defendant was “apprised of [their] rights and had knowingly decided to waive them.” Estelle, 451
U.S. at 469. Given the limited scope of the issues raised in this interlocutory appeal, we do not
reach defendant’s other arguments.6
¶ 15. Finally, after holding the trial court has discretion to exclude counsel from
competency examinations, we review its decision to exclude defense counsel for an abuse of that
discretion. Defendant argues that the trial court abused its discretion by failing to “appropriate[ly]
balance” his due-process rights and Dr. Garvey’s disclosure concerns. But the court weighed “the
nature and consequences of the offenses charged, defendant’s criminal history, the declared
purpose for counsel’s presence, and Dr. Garvey’s concerns with counsel’s attendance.” It
emphasized that its conclusion to exclude counsel would not prevent defendant from “call[ing] Dr.
Garvey as a witness, cross-examin[ing] her, or depos[ing] her, based on her written report.”
Furthermore, Dr. Garvey’s conclusions, like those of all psychiatric experts, are subject to scrutiny
under Daubert. See Daubert, 509 U.S. at 580 (“Faced with a proffer of expert scientific
testimony[,] the trial judge . . . must make a preliminary assessment of whether the testimony’s
underlying reasoning or methodology is scientifically valid and properly can be applied to the facts
5 We have indicated that the Fifth Amendment prohibits admitting evidence obtained
solely as a result of a defendant’s statements to a psychiatrist during a competency examination.
See Bushey, 147 Vt. at 144, 513 A.2d at 1180 (citing Kastigar v. United States, 406 U.S. 441, 460
(1972)); Kastigar, 406 U.S. at 460 (barring use of compelled testimony as “investigatory lead” and
use of “any evidence,” including derivative evidence, “obtained by focusing investigation on a
witness as a result of his compelled disclosures”).
6 Defendant appears to argue that the amount of information Dr. Garvey conveyed about
the testing was insufficient to allow defense counsel to advise defendant whether he should submit
to the testing. The trial court’s order answered the issue before us, whether defendant has a right
to presence of counsel at the competency examination, in the negative. Defendant’s request for
permission to appeal raised the right to presence of counsel issue only, but not the notice issue.
Therefore, we will not address the notice issue because it is not within the scope of our
interlocutory review under Rule 5.1.

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at issue.”); USGen New England, Inc. v. Town of Rockingham, 2004 VT 90, ¶¶ 18-19, 177 Vt.
193, 862 A.2d 269 (recognizing Vermont has adopted Daubert’s admissibility principles); V.R.E.
702 (codifying Daubert principles); State v. Sullivan, 2017 VT 24, ¶ 26, 204 Vt. 328, 167 A.3d
876 (“Vermont trial judges ‘must now act as gatekeepers who screen expert testimony ensuring
that it is’ both reliable and relevant.” (quoting USGen New England, Inc., 2004 VT 90, ¶ 19)).
¶ 16. Ultimately, the trial court has a duty to ensure an incompetent defendant is not tried.
Beaudoin, 2008 VT 133, ¶ 8. Because the competency examination is a “crucial diagnostic tool,
the judicial aim must be to make it an effective instrument of justice.” State v. Whitlow, 210 A.2d
763, 772 (N.J. 1965), superseded by statute on other grounds by State v. Arrington, 359 A.3d 1166
(N.J. 2026). This aim requires the trial court to exercise its discretion in overseeing the process to
carry out its duty. Defendant fails to show that the trial court’s discretion was “either totally
withheld or exercised on grounds clearly untenable or unreasonable.” Merchant, 173 Vt. at 255,
790 A.2d at 392 (quotation omitted).
Affirmed.
FOR THE COURT:
Chief Justice