By DAMIEN FISHER, InDepthNH.org
CONCORD — The state’s first major witness called in the Matthew Millar murder trial, state prison Corrections Officer Josephine McDonough, didn’t see the alleged crime despite being in the middle of the violent altercation with Secure Psychiatric Unit patient Jason Rothe.
Former corrections officer Millar is charged with second-degree murder for allegedly kneeling on Rothe’s back for up to two minutes causing his death during the April 29, 2023, incident at the State Prison for Men’s Secure Psychiatric Unit in Concord.
But McDonough, called by prosecutors in Merrimack County Superior Court, testified Wednesday she never saw Millar knee Rothe. Instead, she testified she saw Millar and Corrections Officer Timothy Wright kneeling next to Rothe as they gained control of the violent man.
“I want to say they were just on their knees maybe and I want to say they were just keeping him there. Not pushing him down, not choking him, not causing him more harm,” McDonough said.
McDonough fought tears Wednesday as she recounted the fateful last encounter with the unpredictable and volatile Rothe. The extraction of Rothe from a day room inside the SPU went wrong from the start, according to McDonough’s testimony.
Cpl. Lesley-Ann Cosgro, the officer in charge, failed to follow DOC protocol for removing a resisting patient from a room. She did not have enough staff for the extraction team, she did not have her team put on protective gear, she did not call for backup, and she did not secure the rest of the unit before confronting Rothe, according to McDonough’s testimony.
According to records recently released by the Department of Corrections, none of the corrections officers who were part of the extraction team blamed Millar for Rothe’s death, and none claimed he had put his knee on Rothe’s back in their initial statements. Cosgro would later tell investigators Millar had his knee on Rothe’s back for several minutes, but she later changed her story.
DOC administrators failed to hand over 5,000 pages of evidence to the state, a fact not discovered until just before the original March trial date. In the newly released documents, Cosgro told investigators during a DOC internal investigation conducted after Millar was charged that she only saw Millar’s knee on Rothe’s back for a few seconds. Cosgro was then facing discipline for her actions during the extraction, according to court records.
Rothe had been in the SPU for years due to his severe psychological illnesses making him a danger to himself and others. He also had a colostomy bag due to a prior self-inflicted wound. On April 29, 2023, he refused to leave the day room and return to his cell as directed.
After McDonough and Cosgro failed to talk Rothe into leaving, Cosgro assembled her extraction team which did not include Millar. Rothe began punching Wright as soon as the team entered the day room, McDonough said. She tried to grab his arm and pull him back, but could not because of his surprising strength. McDonough slid down, held onto Rothe’s leg, and then brought him to the ground. But at this point, Rothe was on top of McDonough.
“I remember bodies being scrambled around and I felt like I was the only one fighting him,” McDonough testified.
She tried to put a set of handcuffs on Rothe, but he got them away from her, she testified. During the ensuing scuffle, McDonough ordered Rothe to drop the handcuffs while Cosgro hit him with a taser. Rothe told McDonough he couldn’t let go of the handcuffs because he could not open his hand after getting tased, she testified.
At some point, Millar came into the room, responding to the alert that officers were in danger. Millar helped get Rothe handcuffed and he and Wright kept Rothe under control while McDonough ran to get leg irons, she testified.
McDonough testified she could not remember if she heard Rothe breathing before or after she got the leg irons.
Throughout the incident, Jennifer Fitzgerald, the only nurse on duty, did not check on Rothe’s vital signs until well-after after he was restrained, placed in a different room, and McDonough noticed he wasn’t breathing. Fitzgerald has an immunity agreement with the state for her expected testimony.
Under questioning from Jordan Strand, Millar’s attorney, McDonough said she told State Police investigators she thought Rothe died of a heart attack. That answer was stricken after Assistant Attorney General Dan Jimenez objected.
Throughout McDonough’s testimony on Wednesday, two DOC investigators sat within eye-line view of the witness stand. The male and female investigators displayed their badges and the woman wore a DOC jacket. They acknowledged to InDepthNH.org they were on paid assignment while attending the trial, but declined to answer further questions. The DOC’s public information office did not respond to InDepthNH.org’s questions about the pair.
The trial is set to resume Friday following the Juneteenth holiday on Thursday.