By DAMIEN FISHER, InDepthNH.org
Attorney General John Formella knew that then-Department of Corrections Commissioner Helen Hanks conducted interviews in Jason Rothe’s death after she was told not to, yet he did not share his knowledge, according to documents unsealed this week.
Attorneys for Matthew Millar, the former corrections officer facing trial on a second-degree murder charge in Rothe’s death in the Secure Psychiatric Unit of the State Prison for Men, say Formella’s newly discovered role are grounds for dismissal. Records of the interviews Hanks and DOC Personnel Director Fallon Reed conducted in April and May of 2024 with witnesses are part of the evidence DOC had been withholding from the defense.
“The Attorney General’s Office notified the DOC, on February 27, 2024, that they could resume the internal affairs investigation into Mr. Rothe’s death. The Attorney General’s Office should have notified the defense at the same time. If defense had been notified of the DOC investigation, the defense would have requested information related to that investigation sooner and this discovery issue would have been avoided,” Millar’s attorney Jordan Strand wrote.
Millar’s trial was originally set for March but got delayed when it was learned that Hanks had been holding back a trove of material, including exculpatory evidence about witnesses, and the 2024 interview statements that contradict the allegations Millar killed Rothe, who was a patient in SPU. Merrimack County Superior Court Judge Daniel St. Hilaire warned prosecutors in March that any new discovery violations would result in the case getting dismissed.
At the time the withheld evidence was discovered in March, prosecutors claimed they did not know about the 2024 interviews Hanks conducted. St. Hilaire declined to dismiss the case in March because prosecutors stated they did not know.
“The Court denied Mr. Millar’s Motion to Dismiss, in part, because it was ‘clear to the Court that the Attorney General’s Office has no culpability in the violation….’ However, since that time, and upon receipt of further discovery the defense has identified two emails that put Attorney General John Formella on notice that the DOC had resumed their investigation in February 2024,” Strand wrote.
Formella’s office declined to comment when contacted Tuesday.
But St. Hilaire ruled Friday during a closed hearing that Formella’s failure to tell prosecutors or defense attorneys about the 2024 interviews does not rise to the level of a dismissal.
“However, the newly presented information does not constitute a further violation necessitating dismissal. Accepting Defendant’s framing of the issue, even if Attorney General Formella was aware that DOC resumed its investigation in February 2024, dismissal remains unwarranted,” St. Hilaire wrote in a subsequent order.
According to St. Hilaire’s order, the internal investigation Hanks was conducting in 2024, after Millar had been indicted, was a civil matter. The Attorney General’s Office operates with Civil and Criminal Bureaus working independently, and not sharing information. Formella did nothing wrong by not alerting the Criminal Bureau about matters that fall under the Civil Bureau’s jurisdiction. As for the withheld evidence, there is still no proof that prosecutors were aware of the material despite Formella’s knowledge, St. Hilaire wrote.
“While the Court is also frustrated with DOC’s delay in providing relevant information, the Court does not consider that the fault of the attorneys in the Criminal Bureau. The Criminal Bureau sought information about former Commissioner Hanks and Director Reed’s interviews with the other officers present once the Bureau learned of their existence,” St. Hilaire wrote.
Strand filed a new motion to dismiss the case on June 3, along with the emails in question showing Formella knew about the investigation. Strand’s June 3 motion, as well as the state’s objections were sealed, as was St. Hilaire’s ruling. As of Tuesday, the motion, objection and order are all public, but St. Hilaire continues to seal those emails.
Hanks, who was pushed out of her job last month, is now listed as a potential witness by the defense in the trial scheduled to begin on June 17. According to the evidence finally released in March, Hanks destroyed the notes she made of the 2024 interviews in question.
After Millar was indicted in February of 2024, Formella’s office gave Hanks clearance to conduct an internal DOC investigation into Rothe’s death. But, Civil Bureau Assistant Attorney General Michael Grandy instructed Hanks not to interview any witnesses during the DOC investigation.
“On February 27, 2024, the Civil Division attorney assigned as client counselor to DOC, Assistant Attorney General Michael Grandy, wrote to DOC telling them that they may commence a further internal review but that they should not take statements from witnesses,” according to the state’s objection to the motion to dismiss.
Hanks went ahead and interviewed five witnesses anyway, with Reed present, according to Assistant Attorney General Dan Jimenez’s objection. Jimenez and his team did not learn about those interviews until the end of February when he asked for any Laurie List material on the witnesses he planned to call.
The Laurie List, or Exculpatory Evidence Schedule is the list of law enforcement officers with known credibility problems.
“On February 28, 2025, the Department of Corrections first informed and provided the [Criminal Justice Bureau] Laurie material for three of the corrections officers that are witnesses involved in the murder of the Victim. These findings were immediately handed over to the Defendant. These findings referenced meetings with former Commissioner Hanks and Fallon Reed,” the objection states.
Rothe died following a violent incident inside the Secure Psychiatric Unit, where Rothe was being held due to his debilitating mental illnesses. The SPU is home to patients from New Hampshire Hospital and the state’s prisons deemed a danger to themselves and others. Though billed as a hospital, it is operated as a prison and staffed with corrections officers as well as nurses.
On April 29, 2023, Corporal Lesley-Ann Cosgro led a team of several officers to physically remove Rothe from a dayroom. Millar was on break at the time and not part of the extraction team. He got involved when Rothe started fighting the officers and an alert went out that officers were being assaulted. Witnesses would later tell investigators that Millar put his knee on Rothe’s back and kept it there for almost two minutes.
Cosgro is one of the officers interviewed by Hanks twice, once in the summer of 2023, and again in the spring of 2024.
However, the withheld evidence from the 2024 interviews Hanks conducted with Reed and the officers includes notes Reed took. Reed’s notes include details like one witness “walking back” her prior statement about Millar kneeling on Rothe’s back, and another claiming that the accusation about Millar kneeling is a lie.