By DAMIEN FISHER, InDepthNH.org
CONCORD — The case of a former corrections officer accused of killing a patient inside the State Prison for Men’s Secure Psychiatric Unit, based on the now recanted statement from his supervisor, is about to go to the jury to decide.
Matthew Millar’s defense team rested its case Tuesday, bringing the three-week trial closer to its finale. Closing arguments are now scheduled for Wednesday morning in Merrimack County Superior Court. The jury is then expected to begin deliberations to determine if Millar killed patient Jason Rothe on April 29, 2023.
Millar is charged with second-degree murder for Rothe’s death, but the jury can convict him of lesser offenses like manslaughter or negligent homicide. Millar has been jailed since his arrest in 2024.
Millar was charged in February of 2024 after former Department of Corrections Corporal Lesley-Ann Cosgro told New Hampshire State Police investigators Millar pressed his knee onto Rothe’s back for several minutes as Rothe was handcuffed and face down on a concrete floor. Cosgro is the only corrections officer out of five who were part of the botched room extraction to claim that Millar kneed the prone Rothe.
The defense called DOC Personnel Director Fallon Reed on Tuesday to testify about the spring, 2024 disciplinary letter former DOC Commissioner Helen Hanks issued to Cosgro for her handling of the fatal room extraction. Cosgro was demoted for violating several policies, including lying in her statements during the investigation.
During her statements to Hanks in 2024, Cosgro again changed her story about Rothe’s death. This time she claimed Millar had his knee on Rothe for “seconds, flashes of seconds.”
Reed said she did not know why Cosgro’s discipline letter was never handed over to the defense as evidence until March of this year.
Prosecutors brought in additional evidence to bolster the case, the autopsy done by the Office of the Chief Medical Examiner, and an independent use-of-force review done by an expert witness, but both those reports presume Cosgro was telling the truth.
Two other officers in the room called by the state, Josephine McDonough and Timothy Wright, both testified that Millar never had his knee on Rothe’s back while Rothe was handcuffed and prone.
Dr. Emma Lew, a forensic pathologist called by Millar’s team, testified Monday that there is no medical evidence Rothe died from asphyxiation because of a knee to his back. It is more likely that Rothe died from a sudden cardiac event, she said. The only way the medical evidence can be interpreted to find asphyxiation is if Cosgro told the truth about Millar’s extended use of his knee on Rothe’s back, she testified.
Cosgro initially reported Millar did not knee Rothe in three separate internal DOC statements she made in the weeks and months after Rothe’s death. But after she was subpoenaed in the criminal investigation, Cosgro changed her story for detectives and cast blame on Millar.
“I’m not going to jail for killing this guy,” Cosgro told state police investigators, according to the transcript read in court last week.
Cosgro led the April 29, 2023 room extraction to get a violent and agitated Rothe out of an SPU dayroom, where he had been for hours. Cosgro ignored DOC policy and sent in an understaffed team without protective gear, or a clear plan. The ensuing melee saw officers fight for their lives against Rothe, as the patient, already deemed a danger to himself and others, threatened to kill them all as he fought.
About a minute into the battle, Officer Maria Bissonnette put down the video camera to help her fellow officers, as she feared they were losing. There is no full video recording of the incident.
Rothe was punched in the head several times during the fight, and Cosgro triggered her taser several times at Rothe despite the DOC policy limiting its use to three strikes. Millar was not part of the original extraction team, but came into the room to help after being told his fellow officers were in trouble.
Millar and Wright were finally able to get Rothe handcuffed and under control before he was removed from the dayroom and brought to the SPU’s restraint room. Once in the restraint room, officers discovered Rothe was not breathing and they began CPR and other life-saving measures until EMTs arrived. Rothe was later pronounced dead at Concord Hospital.
Defense use-of-force expert, Daniel Busken, testified Tuesday that Cosgro’s decisions that day were “ridiculous.”
“It’s complacency is what it is, and complacency gets people killed,” Busken said.
Busken testified that even if Millar briefly used his knee to get control of Rothe and get him handcuffed, that is not a dangerous maneuver. In fact, putting a knee on a shoulder while handcuffing a resisting person is something officers are trained to do in some circumstances.
“A force situation is a situation where you’re trying to get somebody to comply who does not want to comply. I know how chaotic these situations can be,” Busken said.
The defense estimates needing up to an hour and a half to make closing arguments on Wednesday, with the state guessing it will need less time. The trial resumes at 9 a.m.