DOC Nurse Gets Immunity Deal Ahead of Prison Murder Trial

Damien Fisher photo

Former state prison Corrections Officer Matthew Millar, seated center, is pictured at a hearing last month in Merrimack County Superior Court in his second-degree murder case.

Share this story:

By DAMIEN FISHER, InDepthNH.org

The only nurse on duty when Jason Rothe died inside New Hampshire State Prison for Men’s Secure Psychiatric Unit now has an immunity deal signed off by Attorney General John Formella.

Jennifer Fitzgerald is set to testify in the second-degree murder trial against former Department of Corrections officer Matthew Millar, who’s accused of killing Rothe during the April 29, 2023, incident by placing his knee on Rothe’s back for almost two minutes. But Fitzgerald won’t have to worry that anything she says on the stand will come back to haunt her. 

With jury selection in the trial scheduled to start Tuesday in Merrimack County Superior Court in Concord, prosecutors filed a last-minute petition with the court on Friday seeking an order to compel Fitzgerald to take the stand, along with the immunity caveat. According to the petition, Fitzgerald could refuse to testify on Fifth Amendment grounds that she cannot be forced to incriminate herself. Formella’s deal, approved by Judge Daniel St. Hilaire, now protects her from prosecution for anything she truthfully says on the stand.

 St. Hilaire’s order, copied from Formella’s letter, means the state can compel Fitzgerald to testify, but that she cannot be prosecuted for anything she says under oath.

“[N]o testimony or other information compelled under this Order, or any information directly or indirectly derived from such testimony or other information, may be used against Jennifer Fitzgerald in any criminal case or forfeiture,” St. Hilaire wrote Friday, soon after the petition was filed. 

Rothe was committed to New Hampshire Hospital, the state’s psychiatric hospital, after he was deemed incapable of taking care of himself, according to court records.

On Aug. 16, 2022, New Hampshire Hospital sought a court order to transfer Rothe to the Secure Psychiatric Unit at the prison due to the likelihood of him causing harm to himself and others. The SPU is home to violent patients from New Hampshire Hospital and the state’s jails and prisons. Though billed as a hospital, it is operated as a prison and staffed with corrections officers as well as medical personnel. 

Rothe 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.

On April 29, 2023, Rothe refused to leave an SPU day room, and DOC Corporal Lesley-Ann Cosgro first tried to talk Rothe into going to his room before she led an extraction team to physically remove him, according to court records. Rothe reportedly told Cosgro he would fight and kill all of them rather than leave the day room.

 During the ensuing fight, Rothe punched officers and got control of a pair of handcuffs that he swung as a weapon, according to court records. In return, Rothe took several punches to the head, and Cosgro repeatedly used a taser on Rothe. It wasn’t until Millar, not part of the original extraction team, got to the room that Rothe was finally brought under control. Millar reportedly kept a knee on Rothe’s back to make sure there was no more violence until they could get him physically secured, but there are differing statements on how long Millar kept the knee on Rothe’s back, according to court records.

According to her statements, Fitzgerald did not see Millar with his knee on Rothe’s back, and she did not do any physical examination on Rothe in the aftermath of the fight. Fitzgerald did not enter the room where Rothe reportedly fought with corrections officers until after the violence subsided and Rothe was under control, New Hampshire State Police Trooper Kevin Pratt wrote in his probable cause statement.

“When she arrived at the day room, she observed officers ‘catching their breath’ and Rothe lying in the prone position. Although she observed officers surrounding Rothe she could not recall if any correction officers were touching him. During her time in the day room Rothe did not resist, he did not speak or move. She did not perform an examination of Rothe in the day room because she believed he was playing ‘opossum,’” Pratt writes.

Fitzgerald helped get Rothe restrained on a stretcher and led him to the restraint room where he was placed on a table facedown and his hand and feet were shackled, according to court records. Throughout the process of being removed from the day room where the altercation took place and being restrained on the table, Rothe showed no signs of life, according to court records. 

After about a minute and a half, one of the officers checked Rothe for a pulse and did not find one, Pratt’s report states. Officers, including Millar, rolled Rothe onto his back and started performing life-saving techniques. Fitzgerald entered the room with an automated external defibrillator, or AED, but did not use it since the device did not detect a pulse, according to Pratt. 

Millar and other officers then started performing CPR until an ambulance arrived. Rothe would be declared dead upon arriving at Concord Hospital, Pratt wrote. 

On May 2, 2023, three days after Rothe’s death, then-Department of Corrections Commissioner Helen Hanks formally changed DOC policy to prohibit use of restraint stretchers, like the one used on Rothe.

Comments are closed.