By DAMIEN FISHER, InDepthNH.org
Ex-Department of Corrections Commissioner Helen Hanks won’t have to explain why she destroyed her notes from witness interviews she conducted in the aftermath of patient Jason Rothe’s April 2023 death at the Secure Psychiatric Unit at the men’s prison in Concord.
Matthew Millar, a former corrections officer assigned to the Secure Psychiatric Unit, is headed to trial in the coming weeks on a second-degree murder charge for allegedly causing Rothe’s death. Millar is accused of kneeling on Rothe’s back for close to two minutes during a violent struggle inside the facility.
His lawyers wanted Hanks to sit for a deposition after previously withheld evidence obtained this month revealed she was talking to witnesses during the investigation conducted by the New Hampshire Attorney General’s Office. Attorney Jordan Strand also sought depositions for Fallon Reed, DOC’s Director of Personnel & Information, Captain Scott Marshall, and Kristen Cowell, who works in Reed’s department.
Merrimack County Superior Court Judge Daniel St. Hilaire issued an order Friday denying Millar’s request to depose Hanks, Marshall, and Cowell, but is allowing him to depose Reed. The order comes a day after prosecutors argued against Hanks’ deposition during a hearing in court.
But St. Hilaire ruled that Millar can make do with Reed, who was present at all of the interviews with Hanks and the witnesses, and she took notes, according to court records.
“With the opportunity to depose Reed, the necessity of deposing Hanks or Cowell is diminished. Reed was present in all of the officers’ interviews. She can speak to what occurred before, during, and after. Further, because she appears to have been the primary note taker, she can best speak to the documentation of those interviews,” St. Hilaire wrote.
Cowell also took notes during spring 2024 meetings Hanks and Reed had with the officers/witnesses. As with his decision on Hanks, St. Hilaire ruled that questioning Reed will be enough for Millar.
Millar’s team may get to depose Marshall, however. Among the withheld pieces of evidence is an internal report about a violent altercation involving Rothe that took place two weeks before his death. Marshall did not act on that report until the day Hanks was informed that the Attorney General was investigating. Further, Marshall crossed out the original April 16, 2023 date on the report and wrote May 2, 2023.
Prosecutors must get a signed statement from Marshall about his on-the-fly editing within the coming days. If not, St. Hilaire will allow Millar’s lawyers to depose him.
The troubling nature of the evidence Hanks refused to hand over for months includes statements from the witnesses refuting the allegations against Millar. Hanks’ hidden evidence also includes disciplinary information about the witnesses that could undermine their credibility, according to court records.
Hanks was interviewed this month by State Police investigators when evidence of these meetings surfaced. The case against Millar was nearly dismissed when St. Hilaire first learned in March that Hanks and the DOC were withholding evidence.
Hanks had been notified in May of 2023 that the Attorney General’s Office was investigating Rothe’s death. Normally, that would mean she should not be interviewing the officers involved in the incident as they are also witnesses in the criminal investigation.
Hanks explained her meetings with the witnesses by claiming that she was not investigating the officers, but was investigating the death. She told State Police investigators that the interviews were actually “performance evaluations.” Corrections officers do not generally have performance evaluations with the DOC commissioner and the head of personnel.
The May and June 2023 meetings Hanks and Reed had with the witnesses resulted in Hanks sending disciplinary letters to at least three different officers. Hanks told State Police investigators that the letters were comprehensive records of the meetings, and that her own handwritten notes informed her drafts of those letters. Hanks destroyed her notes from those meetings, and she says that is her standard practice as her poor handwriting makes them virtually illegible.
However, Reed’s notes, which did not get released to Millar’s lawyers until this month, contain more details than what is in the letters, according to court records. It’s also unknown, and now unknowable, if notes Hanks took match Reed’s.
Hanks resigned from her job as commissioner earlier this month, though she has stated that leaving DOC was not her idea. The reason for her getting pushed out by Gov. Kelly Ayotte is not clear, though her resignation was hailed by people who work inside DOC.
Rothe was committed to New Hampshire Hospital, the state’s psychiatric hospital, in 2019 when he was determined to be incapable of taking care of himself, according to the police affidavit filed in the case. He suffered from schizo-affective disorder and bipolar disorder and also had a colostomy bag which collected stool after a self-inflicted injury, according to court records.
Rothe was moved to the SPU in 2022 when hospital officials deemed he was a serious risk to harm to himself and others. The SPU is home to violent patients from New Hampshire Hospital and the state’s prisons and county jails.
Those served in SPU include patients committed through the NH judicial system (in accordance with civil commitment statutes) due to mental illness and dangerousness, not guilty by reason of insanity, and those rare individuals committed under the state’s sexually violent predator law, and individuals who are developmentally disabled requiring intervention for extreme dangerousness, according to SPU’s website.
Though billed as a hospital, it is operated on the prison grounds as a prison and staffed with corrections officers as well as nurses.