Council asked to confirm 2 new assistant AG posts In county attorney dispute

Deputy Attorney General Jane Young is pictured with Attorney General Gordon MacDonald the day she was sworn in as deputy.

CONCORD - One of the lawyers that Deputy Attorney General Jane Young says will help straighten out the Hillsborough County Attorney's Office prosecuted the parents in an infant drug overdose death case similar to the one that prompted Assistant County Attorney Don Topham's suspension, but David Rotman's plea deal was for much less time in prison.

Rotman was working as an Assistant Merrimack County Attorney when he prosecuted Bradford Ross in the methamphetamine intoxication death of his son, Cayden, 2 months old, who died on Aug. 1, 2016.

In a sentencing hearing posted on WMUR's website, Rotman told Judge John Kissinger that a 2 ½- to 5-year prison sentence was appropriate for Ross who pleaded guilty to handling methamphetamine in close proximity to his son. Negligent homicide and manslaughter charges were dropped as part of the deal.

"Though the defendant clearly intended to engage in methamphetamine use and distribution, it also seems very clear that he did not intend his own son to die because of these acts," Rotman told the judge. The boy's mother, Kayla Austin, was sentenced to 90 days for endangering the welfare of her two children.

Young said at a recent news conference that Rotman, who left the Strafford County Attorneys Office for his new job, will assume the role of training attorney at Hillsborough County. Earlier this month, Attorney General Gordon MacDonald said David Mara, a former Manchester police chief, will take over the Hillsborough County Attorney's office, although Michael Conlon remains the elected county attorney.

But first, the appointments of both men will be taken up Wednesday by the Executive Council for the new assistant attorney general positions they would assume within the Attorney General's Office if confirmed.

Mara's salary would be $96,425 and Rotman's, $95,450, according to the executive council's agenda. Four other attorneys have also been nominated for the department. Young was unavailable for comment Tuesday night.

Assistant Hillsborough County Attorney Don Topham was suspended with pay earlier this month after Manchester Police Chief Carlo Capano publicly criticized a plea deal he made in the Joshua Garvey case in which Garvey was sentenced in the May 25, 2018 cocaine overdose death of his son Tayden Garvey. Topham told InDepthNH.org that the case had problems from a prosecutor's point of view and he sought four times as long a sentence as Rotman did in the Ross case.

Although he said it has been misreported, Topham said Garvey was sentenced to 10 to 20 years in prison, which could possibly be reduced to 5 to 10 years if he successfully completes two to four years of residential drug treatment. The boy's mother, Christen Gelinas pleaded guilty to drug charges and running a drug house and was sentenced to 8 ½ years in prison.

The plea agreement is one of three cases Deputy Attorney General Young cites in the state's decision to take over the prosecutorial duties from Hillsborough County Attorney Conlon, who suspended Topham on Sept. 3 after Capano complained. Conlon is expected to announce his decision whether to retain Topham or fire him in the next 24 to 48 hours.

"I don't understand why I get a plea of 10 to 20 years on an infant drug overdose case and I get a month's suspension waiting to be terminated," Topham said Tuesday night. "And another prosecutor who has a similar case that was far easier to prove and gets a 2 ½- to 5-year sentence and he is selected to run the office."

Topham previously said the case would be difficult to prove because both parents would have argued that the other one was responsible. He also said Manchester police withheld "crucial" evidence from prosecutors in the case about a 911 call the boy's mother made to police in November of 2017.

Topham said he learned of the call from Gelinas' attorneys in August.

"(Gelinas) said the baby's upstairs with the babysitter and the baby's father has gone out to get drugs and the baby's not safe," Topham said summarizing the 911 call.

He said Manchester police sent a patrol car and arrested Gelinas on an outstanding warrant on drug charges, but failed to check on the child. On Monday, Manchester Police Chief Capano declined to comment on the allegation.

Nancy West writes for InDepthNH.org, which cover regional and statewide issues.