By DAMIEN FISHER, InDepthNH.org

CONCORD — The state is just about done presenting evidence in Jason Rothe’s alleged murder, but it remains to be seen if it will be enough to convict former Corrections Officer Matthew Millar of second-degree murder. 

Expert witness Gary Raney took the stand Thursday in Merrimack County Superior Court, the final witness prosecutors have to make their case. Raney, whose expertise is in use of force for law enforcement and corrections officers, told jurors he believes Millar’s excessive force led to Rothe’s death inside the State Prison for Men’s Secure Psychiatric Unit on April 29, 2023.

“Whatever happened with Mr. Rothe when it happened … any force beyond that was unnecessary force,” Raney said. 

Raney, however, is hamstrung by the same problem as the state’s other expert witness, Deputy Chief Medical Examiner Mitchell Weinberg. Both men reached their conclusions relying on the now recanted statement provided by former corrections Corporal Lesley-Ann Cosgro. 

Cosgro is the only witness who testified she saw Millar put his knee on Rothe’s back after Rothe was handcuffed and in a prone position on his stomach. When she testified this week, Cosgro told jurors she saw the knee on Rothe’s back for “flashes of a second.” 

Cosgro’s version of events are key to the state’s case, even though she initially told her supervisors she didn’t see any excessive force from Millar. She made two statements in the spring and summer of 2023 during the DOC’s internal investigation that there was no excessive force.

But after getting served with notice of the criminal investigation, Cosgro told New Hampshire State Police detectives in the fall of 2023 that Millar had his knee on Rothe’s back for up to several minutes. Cosgro told the detectives Millar used his full-body strength to keep the knee pressed down on Rothe’s back. That’s the statement Raney and Weinberg used for their work. 

It’s only been learned in the past couple of weeks that Cosgro changed her story again in the spring of 2024. Facing discipline for her many failures during the extraction of Rothe from a dayroom, Cosgro told then-DOC Commissioner Helen Hanks she did not intervene to stop Millar because his knee was only on Rothe’s back for “flashes of a second.”

There is no video of everything that took place inside the dayroom where Cosgro led an “extraction team” to remove Rothe. The camera brought by the team stopped recording after about a minute into the melee.

The undeniable record that does exist shows that Cosgro fumbled her way into a violent encounter with the agitated and delusional Rothe. The extraction team did not have enough officers per Department of Corrections policy, the team members did not put on protective gear, and Cosgro did not assign any team member to a specific task once inside the dayroom. Raney’s review of the incident found that even though the DOC staff was poorly trained on a set of “fuzzy” policies, they still did not follow the correct procedure.

“Everybody knew what to do, but nobody did it,” Raney said.

Part of the issue may be DOC leadership. Earlier this week, former Corporal Timothy Wright testified then-SPU Director Paula Mattis had a standing order that extraction teams were to forgo protective gear so as not to upset the patients. That doesn’t explain Cosgro’s taser use during the incident. Cosgro never used a taser during a room extraction until April 29, 2023, but she knew the policy was to shock a subject no more than three times. Cosgro used the taser eight times during the extraction. 

“Her management of the event was insufficient,” Raney said.

Millar was not part of the extraction team, and only went to the dayroom when he heard the other officers were in danger. Prosecutors tried to paint Millar as being unhinged and angry that day, and told jurors that he was heard yelling at Rothe that morning. But the only witness who heard that yelling was again, Cosgro. 

Cosgro was the only one of five other officers in that dayroom to testify Millar had his knee on Rothe’s back after Rothe was cuffed and in the prone position. Weinberg testified he used Cosgro’s statement to explain Rothe’s injuries and come up with his medical opinion that Rothe died from traumatic, compressional and positional asphyxiation. 

Finishing his testimony on Thursday, Weinberg was adamant that Rothe did not die from any heart ailment. Rothe was 50 at the time of his death.

“His heart disease is just not that bad. For me to call Mr. Rothe’s death a primarily cardiac event would not have passed peer review,” Weinberg said.

Rothe was described as violent and dangerous, even by SPU standards. He suffered from a schizoaffective disorder and had a colostomy bag as a result of a past self-harming incident. Rothe also had an enlarged heart and high blood pressure, indications that he suffered from serious heart disease. There’s also evidence Rothe suffered from an irregular heartbeat. 

Weinberg testified that Rothe did not show signs that he was in an agitated or psychotic state that day which is sometimes associated with a heart rhythm condition that can cause sudden death. However, witnesses like Wright and Corrections Officer Josephine McDonough testified Rothe was angry, excited, and very delusional that day.

According to the officers, Rothe claimed he was being tortured and starved even though he had repeatedly been given extra food that day. When Cosgro assembled the extraction team, Rothe became more angry and told her he was going to kill her and the other officers if they entered the dayroom. During the struggle he attacked the officers who described Rothe as having more physical strength than normal. 

Rothe was committed to New Hampshire Hospital in 2019, the state’s psychiatric hospital, as he was deemed incapable of taking care of himself, according to the police affidavit filed in the case. On Aug. 16, 2022, New Hampshire Hospital sought a court order to transfer Rothe to SPU 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 prisons. Though billed as a hospital, it is operated as a prison and staffed with corrections officers as well as medical personnel.

As well as hearing testimony from Weinberg and Raney, jurors viewed SPU surveillance video from the day of Rothe’s death. The silent video included images of a naked Rothe being given CPR by Millar and other officers in the restraint room once they learned he was not breathing.

The trial will resume Monday after a long weekend. Raney is expected to finish his testimony on Monday, at which point the prosecution will likely rest and the defense will start calling witnesses. Helen Hanks, who suddenly resigned her job as commissioner last month, could be called as a witness by the defense along with other DOC administrative leaders.