By DAMIEN FISHER, InDepthNH.org
Brad Asbury’s appeal of his Sununu Youth Services Center, also known as YDC, sex assault conviction is on hold after the New Hampshire Supreme Court gave him the green light to pursue a new trial in Manchester.
Asbury, 71, is the first person arrested by the YDC Task Force to be convicted for his role in the abuse scandal. He’s now the first to seek a new trial in Superior Court based on what his lawyer claims is new evidence.
Asbury was sentenced last year to 20 to 40 years in state prison after a jury found him guilty on two felony counts of being an accomplice to the 1998 rape of YDC resident Michael Gilpatrick. Gilpatrick was 14 at the time of the rape.
Though he filed an appeal with the state Supreme Court, Asbury’s lawyer, David Rothstein, changed tack after the appeal was accepted and asked for a new trial from Hillsborough Superior Court North Judge Will Delker. But Delker has declined to entertain Asbury’s motion for a new trial while the Supreme Court appeal is pending.
The Supreme Court’s Feb. 6 order allows Asbury to stay his appeal and seek a new trial. According to motions filed in the case, Rothstein claims that evidence made available after the 2024 trial undermines the state’s case.
Rothstein claims that this new evidence includes an on the record denial from one of the people Gilpatrick accused of abusing him. That accused staffer has not been criminally charged, and the accusations against that staffer were not part of Asbury’s trial.
Assistant Attorney General Audriana Mekula has stated Rothstein already had all the supposedly new evidence before Asbury’s trial and did not pursue it in court. In large part, because the evidence involving other YDC staffers would have been inadmissible under the law regarding evidence. Additionally, the staffer’s denial is not proof that the abuse did not happen.
New Hampshire has pursued a conflicted legal strategy from the start, with the Attorney General’s Office in charge of investigating and prosecuting abusers while at the same time defending the YDC system against more than 1,000 civil lawsuits.
The state’s YDC Task Force was created by former Attorney General Gordon MacDonald in 2019 to investigate and prosecute abusers who freely operated inside the YDC system. However, just 11 men out of potentially hundreds of accused staffers were indicted before the Task Force wrapped up its investigation.
Now, Attorney General John Formella’s Department of Justice is focused on minimizing financial liability from the 1,500 or so survivors who came forward. The state is currently involved in a lawsuit brought by survivors who claim the rules for the YDC Settlement Fund were changed after they were encouraged to stay their civil lawsuits and apply for settlements. The disputed rules include Formella’s new authority to veto settlement offers.
Without a favorable resolution to the dispute, the survivors are free to revive their lawsuits against the state. That could prove costly. The average settlement fund award is about $500,000, whereas the one case to get in front of a jury resulted in a $38 million award.
The state is currently trying to undo the damages awarded to David Meehan in the first YDC civil trial to go to a jury. According to Formella’s office, Meehan is only entitled to $475,000 under state law. That appeal was heard in November and a ruling from the Supreme Court is anticipated to come down anytime.