A mental health evaluation of Commissioner Brian Berger found the New Hanover County official incompetent to proceed with a hearing scheduled today on probation violations, prompting a judge to order a second evaluation and reschedule that hearing for Aug. 26.
District Judge Robin Robinson granted District Attorney Ben David’s request for “a second opinion” from a state doctor, and for Berger to proceed with treatment recommended in the evaluation, which was performed by a physician through the public defender’s office and was ordered sealed by Robinson.
Berger is to remain in the New Hanover County jail, where he is under a $300,000 bond and has served 41 days since his arrest in June in Avery County. Addressing reporters outside the courtroom, David said he wants Berger’s competency to be resolved within the next 79 days, which would total the 120-day sentence Berger faces on an impaired driving charge that was suspended as part of a plea deal.
That deal required a year’s worth of supervised probation that David said Berger has violated multiple times since his guilty plea in February. Among the alleged violations is possession of firearms, which were found within reach of Berger when he was arrested in Avery County following a shots-fired complaint.
Related story: Commisisoner Berger in custody in Avery County
Berger was seated across the courtroom Tuesday from an evidence cart displaying those weapons, which included a crossbow and multiple rifles. David said his office was prepared to use that evidence and call witnesses to testify if the hearing had been held.
In addition to the 120-day suspended sentence, Berger faces an additional 45 days on a drug possession charge if found guilty of violating the terms of his probation. David said an additional charge of driving while license revoked is pending in Johnston County, and he said potentially more charges could come from Avery County, emphasizing that any delay in the hearing could in turn delay subsequent prosecutions.
“So his incapacity, his inability to proceed today, is not just holding up a probation violation but pending charges here, Johnston County and in Avery County,” David said. “The judge really has no option but to continue this case today, and to be clear, she’s following the law.”
David cited general statute 15A-1002, which deals with determining the capacity of a defendant to proceed with a hearing. That statute requires that reports on a defendant’s capacity be sealed unless introduced as evidence.
“What we’re doing is making sure that if there’s a question about Mr. Berger’s ability to assist in his own defense or understand charges against him or whatever ‘capacity to proceed’ means,” David said, “that we bring him up to that capacity through treatment and counseling or whatever is directed by a doctor.”
Berger was arrested in Avery County at a home owned by local political hopeful Justin LaNasa, according to David, who identified the Wilmington businessman as the apparent owner of the weapons found in Berger’s possession. David asked the court to have those weapons returned to LaNasa once ownership is established, noting that the weapons could be photographed as evidence.
Berger did not speak during Tuesday’s proceedings but smiled and interacted with his defense attorneys: Jennifer Harjo, public defender for New Hanover County, and Mercedes Pinckney, an assistant public defender.
Robinson told Berger he would remain in the county jail until the Aug. 26 hearing, by which time a state doctor is to evaluate Berger’s competency, and treatment including counseling is to be conducted.
David said Berger’s initial evaluation was conducted by De’ Corbett, a certified forensic specialist with Physicians Alliance for Mental Health. David said the second assessment would be conducted by a doctor selected by the state.
Robinson said she had concerns with Berger’s general well-being and that he received treatment as recommended in jail. She authorized Berger’s probation officer, John Corwin, to explore treatment options on Berger’s behalf.
“If he’s just sitting there languishing in the jail, then his capability to proceed is not likely to change much between now and our next review date,” Robinson said.
Robinson also asked if Berger had been taking any medications. Corwin later said Berger had been taking some medications, adding that he would follow up on Berger’s current status.
“It seems as though, as long as there is communication,” Robinson said, “that there wouldn’t be any problem with just trying to get whatever help might be available for Mr. Berger between now and the next hearing. That would certainly be the court’s goal at this point.”
Outside the courtroom, David said he shared that goal and emphasized an urgency to see the case through.
“Everyone’s united in their view that we want this violations hearing heard as soon as possible. That’s basically where we are right now,” David said.
“We want to have this hearing as soon as we can. No one wants anybody to languish while these determinations are being made,” he said. “Everyone is united in making sure that if there is treatment that is needed that it be done at the soonest practical time, and that we put this in the rearview mirror for all involved by having this hearing as soon as we can.”
Related stories:
- Berger to appear in hearing today on probation violations
- Berger to undergo mental health assessment; trial rescheduled for July
- Berger receives supervised probation in DWI case; felony charge reduced
Jonathan Spiers is a reporter for Port City Daily. He can be reached at (910) 772-6313 or jonathan.s@portcitydaily.com. On Twitter: @jrspiers
