New Hanover County Commissioner Brian Berger’s probation violation case, scheduled for a July 22 hearing, was postponed after a forensic mental evaluation found him incapable to proceed.
Before the case resumes Aug. 26, a second evaluation will be performed by a doctor selected by the prosecution and treatment options will be pursued.
District Attorney Ben David, who represented the state in the July 22 hearing, said continuation of the case was the only option given the conclusion of the forensic evaluation and clearly defined state law.
“What we’re doing is making sure if there’s a question about Mr. Berger’s ability to assist in his own defense or to understand the charges against him, or whatever capacity to proceed means, that we bring him to that capacity through treatment and counseling,” David said.
David arrived at court prepared to continue with the case, flanked by Berger’s probation officer John Corwin as well as several of the weapons found in Berger’s possession when he was apprehended in Avery County on June 10.
A warrant for his arrest was issued June 9 for seven alleged violations of his probation, including absconding or leaving town without notifying his probation officer.
“That’s why we were going to have this hearing today, to allege basically that he absconded from supervision, that he was caught in the mountains with several weapons he was not allowed to possess, and on and on,” he said.
In response to the forensic opinion, which arrived at the courthouse earlier that day, David requested a second evaluation and announced his desire to continue the case at the next hearing if it is determined that Berger is capable to proceed.
“We want to have this hearing as soon as we can. No one wants anybody to languish while these determinations are being made. Everyone is united in making sure that if there is treatment that’s needed, that it be done at the soonest practical time, and that we put this in the rearview mirror for all involved,” David said.
Berger will remain in the New Hanover County jail until his next court appearance. He has served 41 days as of July 22, which will be counted toward the 120-day sentence he faces if found guilty of violating his probation. Berger was sentenced to one year of probation when he was convicted of a DWI in February.
David said he is committed to assuring Berger will not remain in custody longer than he would if he is found guilty of violating his probation.
“I don’t want him sitting in our jail while that’s an open question,” he said.
A defense motion filed by assistant public defender Mercedes Pinckney, Berger’s court-appointed counsel, requested the evaluation during a June 24 hearing. The evaluation was performed June 27 at the New Hanover County jail by Dé Corbett, a certified forensic screener from Physicians Alliance for Mental Health.
Judge Robinson requested options for treatment be explored in the meantime, with the hope of restoring Berger’s capability to proceed before his next court appearance.
“It’s initially just to investigate what the options are with the goal toward some treatment…because I think if there’s no treatment, then his ability to proceed is not likely to change a whole lot,” Robinson said.
Pinckney confirmed that Berger has not received treatment since arriving at the New Hanover County jail.
Corwin was charged with the responsibility to contact Corbett and the jail to determine what options for treatment are available while Berger remains in custody. He said Berger was taking medication before he was incarcerated.
David suggested Corbett return to the New Hanover County jail for a follow-up evaluation after Berger receives treatment to determine if her view of his ability to proceed changed.
At the end of the hearing, Robinson addressed Berger and requested he take care of himself.
The details of Berger’s evaluation remain confidential as the case continues. David said the confidentiality is in accord with state law, not a special circumstance given his status as a public official.
“It is not an uncommon thing that a mental diagnosis for anybody, whether they’re a public official or a private citizen who’s not in the public life…[is]kept under seal,” David said.
David said he is hopeful the probation violation case could be wrapped up during the Aug. 26 hearing if Berger is determined capable to proceed.
If he is found guilty of violating his probation, he will face additional charges for the misdemeanor possession of prescription drugs that was waived as a conditional discharge during a February 2014 sentencing. As a first-time offender, the charge would have been cleared from his record if he stayed out of legal trouble.
Berger also faces pending charges of driving during revocation in Johnston County and potential drug and weapon charges in Avery County.
In the meantime, the weapons found in Berger’s possession when he was arrested in Avery County will be returned to their owner. The court will rely on photographic evidence when the case resumes.
The weapons are believed to belong to Justin LaNasa, who leases the cabin where Berger was staying when he was arrested on June 10. LaNasa, a small business owner and a Republican candidate for state Senate during the 2014 primary election, said he knew Berger through the local political scene and allowed him to stay at his cabin but did not give permission to access the weapons.
The Aug. 26 hearing will take place in room 317 of the New Hanover County courthouse at 2 p.m.