By DAMIEN FISHER, InDepthNH.org
The second-degree murder trial of former Corrections Officer Matthew Millar is now on hold after it came to light the Department of Corrections did not turn over all the evidence.
Millar, 41, is charged with causing the death of Secure Psychiatric Unit inmate Jason Rothe during a 2023 incident. Millar allegedly put his knee on Rothe’s upper back for a prolonged period in order to get control of the unruly inmate during a fracas involving several other officers inside the SPU, according to court records.
The trial was set to begin this month but got pushed back to June when Millar’s defense attorneys moved to have the case either dismissed or delayed based on the fact evidence that the DOC was supposed to hand over is being withheld. The motion to dismiss or delay the case is currently sealed. Merrimack Superior Court Judge Daniel St. Hilaire ruled on March 11 he would not dismiss the case yet, since the fault lies with DOC, but warned prosecutors that could happen if there are more problems.
“It is clear to the Court that the Attorney General’s Office has no culpability in the violation and that the Department of Corrections has not complied with requests from the Attorney General to provide ALL information applicable to this case. The State is warned, however, that any further violations will likely result in dismissal,” St. Hilaire wrote.
InDepthNH.org sought comment from the Attorney General’s Office multiple times and did not receive any response. The Department of Corrections indicated it would provide comment, but has not done so as of deadline. Millar’s attorney, Jordan Strand, also did not respond to a request for comment.
One of the questions heading into trial is what, exactly, killed Rothe. The Office of the Chief Medical Examiner ruled Rothe’s death a homicide caused by “combined traumatic (compressional) and positional asphyxia.” That means that while Millar’s alleged use of a knee on Rothe’s upper pack for almost two minutes contributed to the death, so did the prone position and use of a restraint stretcher to keep Rothe in a prone position.
Millar was not the ranking officer during the confrontation with Rothe. He is not the officer who ordered that force be used on Rothe, and he is not the only officer to have used force in getting control of Rothe. Yet Millar is the only officer charged with a crime.
The court documents and police reports paint a chaotic picture of several inexperienced and ill-equipped officers trying and failing to get control of a violent inmate during the fatal April 29, 2023, incident.
Trouble started when Millar tried verbally to get Rothe to leave a day room in the SPU. Rothe, who suffered from schizoaffective disorder and bipolar disorder, was reportedly agitated and refused to leave. Millar allegedly lost his temper with Rothe and engaged in an argument, escalating the tension. Ranking Corporal Lesley-Ann Cosgro took over and sent Millar on a break while she tried to coax Rothe out of the room.
When Cosgro’s attempt to get Rothe to leave peacefully failed, she ordered an extraction team to go in and get the inmate out. Cosgro later told investigators she believed they could quickly place Rothe in handcuffs.
Rothe threatened to fight and kill Cosgro and her team of officers when he saw them coming, according to a report filed by Gary Raney, an expert witness hired by the state to review the incident.
During the melee, Rothe was punched in the head several times as he struggled with the officers. Cosgro tried to hit Rothe with a taser at least five times to no avail, and Rothe got hold of a pair of handcuffs that he could swing as a weapon.
At this point, Millar responded to a radio call for help and entered the room. Another officer managed to get Rothe onto the ground and into a prone position on his stomach, and Millar and another officer put pressure on his upper back and got him handcuffed, according to the documents.
Rothe stopped moving and Millar kept his knee on the inmate’s back until a restraint stretcher was brought into the room. Costco told investigators Millar used all his weight on Rothe’s back for up to 1 minute and 54 seconds. Rothe was then put onto the board, again in a face-down prone position. By the time Rothe got to a holding room, he was not breathing, according to the reports.
One of the officers on the team had a video camera to record the incident, per DOC policy, but put the camera down about a minute into the incident and the camera was inadvertently shut off and there is no video recording of what exactly happened.
Raney’s expert report does find that Millar caused Rothe’s death with the knee pressure on the inmate’s back. But Raney also faults Cosgro for leading an inexperienced team into the room to extract Rothe, and for failing to get Millar off Rothe when she reportedly observed him using his knee too long.
The team was not wearing protective gear, and Cosgro failed to properly supervise the team during the incident, according to Raney. Additionally, Cosgro seemed “oblivious” to the danger of keeping Rothe in the prone position, Raney states. DOC policy requires that an inmate in Rothe’s situation should have been put into a “recovery” position as soon as force stopped being used.