By DAMIEN FISHER, InDepthNH.org

CONCORD — Jason Rothe’s death inside the State Prison for Men’s Secure Psychiatric Unit was not a homicide, and it was not caused by asphyxiation, Dr. Emma Lew testified Monday.

Lew, a forensic pathologist called as an expert witness for former Corrections Officer Matthew Millar, told jurors that Rothe’s death has all the hallmarks of a particular sudden cardiac dysrhythmia, which can cause death in seconds.

“One second Mr. Rothe is very agitated and combative, and a couple of seconds later he’s completely still. That behavior is not typical of asphyxia, but it is typical of cardiac dysrhythmia,” Lew testified.

Prosecutors say Millar pressed his knee into Rothe’s back during an April 29, 2023 incident for up to five minutes. But the length of time depends on the shifting statements from the state’s key witness, former Corporal Lesley-Ann Cosgro. However long Millar allegedly pressed his knee into Rothe’s back was enough to cause the traumatic compressional and positional asphyxiation determined by Deputy Chief Medical Examiner Mitchell Weinberg to be the cause of death, according to prosecutors.

Lew is the first witness called by the defense as Millar’s second-degree murder trial stretches into its third week inside the Merrimack County Superior Court. The state rested its case Monday after final questions with Gary Raney, an expert in use of force and prison administration.

Raney, whose expert report relies in part on Cosgro’s statements, questioned why none of the several corrections officers who struggled with Rothe reported hearing him breathing hard, call out for breath, or show any other indication he was having trouble breathing.

“Yes, that’s what’s perplexing,” Raney said.

Lew’s explanation for Rothe’s lack of hard breathing is simple: he didn’t die from asphyxiation.

“It takes time to asphyxiate. You’re not going to die immediately, or within seconds. People can survive for one, two, up to three minutes while asphyxiating. Asphyxiation is not a fast death,” Lew said. 

Instead, according to Lew, Rothe died from a sudden cardiac event brought on by a combination of factors like his weight, heart disease, high blood pressure, and schizo-affective disorder. Rothe was at a higher risk of cardiac dysrhythmia, when the heart’s electrical signal is disrupted and stopped, she said. 

Even without the obesity and heart disease, Lew testified that people with schizo-affective disorders are at a higher risk for dysrhythmia. Rothe was also taking the antipsychotic drug haloperidol, which is another risk factor for dysrhythmia.

During the violent incident, patient Rothe exerted himself physically while getting punched in the head by corrections officers, and getting tased several times by Cosgro. Officers were trying to remove him from a dayroom.

Lew mostly agreed with Weinberg’s findings after she reviewed the case in 2024. Her own report on Rothe’s death, though, stated that his other serious health issues were also major contributors to the death.

“I always felt there were other factors involved in Mr. Rothe’s death,” Lew said.

But she changed her opinion on the cause and manner of death in early June, breaking with Weinberg to determine the death was accidental. Cosgro’s story, and a recently discovered change in her account, got Lew to reconsider the case.

Evidence not made available to the defense until just before the trial found that Cosgro initially cleared Millar in three separate statements following Rothe’s 2023 death. According to her own testimony, Cosgro was scared of getting charged herself in the fall of 2023 when her story changed for the first time.

That’s when Cosgro told State Police investigators Millar kept his knee on Rothe’s back for several minutes. After Millar was arrested in February of 2024, Cosgro changed her story again. During a disciplinary hearing with former Department of Corrections Commissioner Helen Hanks, Cosgro claimed she could not have stopped Millar from kneeing Rothe because she only saw the knee on Rothe’s back for “seconds, flashes of seconds.”

Cosgro was disciplined and demoted for her many policy failures during the incident. She was also disciplined for lying about the incident, according to the newly revealed evidence. 

There is no video of Millar’s actions during the 2023 incident, and Cosgro is the only witness to claim he had a knee on Rothe’s back while Rothe was handcuffed and in a prone position.

Because of Cosgro’s newly discovered lack of credibility, Lew said she can no longer consider Rothe’s death a homicide. Without Cosgro, there is no physical evidence that backs up the theory Rothe was murdered with a knee to the back.

“I have no good evidence that a lot of weight was placed on the back of Mr. Rothe for a prolonged period of time,” Lew said. 

Lew completed her testimony Monday, and trial will continue Tuesday with a new witness. DOC Human Resources Director Fallon Reed is expected to be called as a witness. Reed was present when Cosgro met with Hanks in the spring of 2024, and she took notes that differ from the official account of the meetings found in Cosgro’s personnel file.