By DAMIEN FISHER, InDepthNH.org
CONCORD — Where did Jason Rothe die? How did Jason Rothe die?
Like a lot of the facts part of the second-degree murder case against former Corrections Officer Matthew Millar, it’s not certain where or how Rothe died on April 29, 2023 as a patient in the State Prison for Men’s Secure Psychiatric Unit. As the trial in Merrimack County Superior Court starts on its second week, the answers to those questions are not getting any clearer.
On Tuesday, jurors went home early so Judge Daniel St. Hilaire and Eric Raymond, one of Millar’s defense attorneys, could question Deputy Chief Medical Examiner Mitchell Weinberg about a seeming change in his planned testimony. Weinberg is now going to testify as his medical opinion that Rothe was dead before he was placed on the restraint stretcher in the SPU dayroom.
“That’s clearly new information,” St. Hilaire said before asking rhetorically: “‘Why have you made this determination he was dead before he was placed on the stretcher.’ This shouldn’t be a surprise for the defense in front of the jury.”
St. Hilaire ordered a voir dire session with Weinberg, so that he could be questioned under oath before taking the stand in front of the jury on Wednesday. Weinberg conducted the autopsy on Rothe and came to the conclusion his death was a homicide.
But it’s Weinberg’s seemingly new opinion about when and where Rothe died that is raising concerns. St. Hilaire and Raymond both said they want to know how Weinberg reached his new conclusion. Under questioning, Weinberg could not really say when it came to his new clarification on the time of death.
“I don’t have evidence that Mr. Rothe is still alive at the time he is placed on the stretcher,” Weinberg said.
The dayroom incident devolved in just about every way it could on April 29, 2023. On top of the extraction team going in without enough officers, without protective gear, and without a plan, the team’s camera captured about a minute of the almost 10 minute fight. There is no video record of what exactly happened in the missing 8 to 9 minutes inside the dayroom.
But Weinberg told Raymond and St. Hilaire, using the available surveillance video from outside the dayroom, he determined that Rothe was not alive when he was brought out into the hallway on the restraint stretcher after the fight.
“I viewed the video myself … I don’t see him moving, I don’t see his chest rising or falling,” Weinberg said.
Weinberg’s clarified opinion means Rothe died soon after Millar entered the room and help the other officers get control of him, presumably while Millar was holding Rothe in the prone position and before he was placed on the stretcher.
St. Hilaire became frustrated with the doctor during the voir dire, saying Weinberg was evading the questions about how he determined that Rothe was dead. Weinberg said he based his opinion on the video and the written statements of the witnesses.
The doctor acknowledged he could not pinpoint the exact time of death, and said he could not rule out that Rothe died after he was strapped into the stretcher, which would have been after Millar was involved in gaining control.
“Can I rule it out with 100 percent certainty? I suppose not, but that is not my opinion,” Weinberg said.
The defense team’s medical expert, Dr. Emily Lew, is scheduled for her own voir dire on Wednesday morning before the jury is brought into the courtroom. Lew’s opinion also changed in recent weeks after the Department of Corrections suddenly provided thousands of pages of evidence that had been withheld.
In the newly revealed evidence, the witnesses made statements that clear Millar of kneeing Rothe. Lew then reviewed the material with fresh eyes and came to the conclusion Rothe’s death was brought on by his heart condition overtaxed by the fight he instigated with the officers.
During the fight, Rothe was punched in the head several times and hit with a stun gun several times before Millar entered the room.
While the medical experts have their opinions sorted out, Millar’s former colleague, Timothy Wright, was crystal clear in his testimony on Tuesday. He never saw Millar put his knee into Rothe’s back.
“I never saw that sir, if I had seen it I would have stopped it,” Wright testified.
Wright’s testimony was not a great day for DOC leadership. Throughout the trial jurors have heard about the many policy violations committed by former Corporal Lesley-Ann Cosgro when she organized the fateful extraction team. But Wright’s answers under oath shed light on how seriously the agency takes policies. He testified then-SPU Director Paula Mattis had a standing order that officers were not to wear protective gear during extractions, as the sight of the gear might upset the mentally ill residents.
Lt. Scott Towers, the DOC’s expert on use of force training, testified that all officers are trained not to leave a resident or inmate in the prone position on their stomach, as it could lead to asphyxiation. Towers even demonstrated the correct way to handle people using a dummy, and how to roll them into a “recovery” position.
But Wright testified that is not how the officers operated in SPU.
“I have never seen anybody rolled into the recovery position,” Wright said.
The trial continues Wednesday.