Hillsborough County to re-indict strangulation cases following policy change

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Hillsborough County Superior Court North. Photo/Carol Robidoux

MANCHESTER, NH – Hillsborough County will re-indict people who have been indicted for strangulation, but whose cases haven’t yet been resolved, according to County Attorney Michael Conlon.

Conlon said the action is being taken at the direction of the Attorney General’s Office, which also made the decision to stop the practice of having an investigator meet with grand jurors who were going to hear strangulation allegations first to explain the law.

“In an abundance of caution, we will re-indict the ones whose cases have not been resolved yet and try to eliminate any concern or argument there could be raised by defense counsel,” Conlon said.

He wasn’t sure how many cases it would involve or whether questions could be raised by defendants who were convicted of strangulation after the grand jury that indicted them had been educated about the law first.

Conlon said the practice began under his predecessor and when he reached out to the Attorney General’s Office originally to question it, he was told it was legal.

Michael Conlon

Concerns were first raised by former County Attorney Donald Topham before he was fired on Sept. 30. Topham sent an email under the heading of “Possible Grand Jury Irregularities” to Superior Court Chief Justice Tina Nadeau, Deputy Attorney General Jane Young and Randy Hawkes, head of the Public Defender’s Office.

In the email, Topham said he learned in April that Hillsborough County investigator Mark Putney, a retired Manchester police officer, had been giving presentations on strangulation to the grand jurors that had been prepared by Victim Witness Advocate Merrill Beauchamp “to ‘educate’ Grand Jurors after previous Grand Juries had returned No True Bills on a number of Strangulation Indictments.”

“I immediately conferred with other senior Prosecutors who agreed with me that this was, at best, improper, and possibly illegal as it could violate the Grand Jury’s impartiality,” Topham wrote in the email.

Young didn’t return calls on Tuesday, but when asked about Topham’s email last month, Young said she hasn’t seen the presentations, but said it is legal to provide information to grand juries about the law.

“It’s not unusual to inform grand jurors and jurors about the law,” Young said last month.

Topham came under fire when Manchester Police Chief Carlo Capano blasted a plea bargain he made with Joshua Garvey, the father of a 20-month-old boy who died from a cocaine overdose.  Garvey was sentenced to 10 to 20 years in prison, which could possibly be reduced to 5 to 10 years if he successfully completes 2 to 4 years of residential drug treatment.

Former County Attorney Donald Topham

In early September, Attorney General Gordon MacDonald announced his office would take over the law enforcement duties of the Hillsborough County Attorney’s Office claiming Conlon wasn’t on top of the many important cases in his office. Young recently held a news conference and called the situation “dire,” insisting politics played no role as MacDonald is a Republican and Conlon a Democrat.

Conlon refused to resign from his elected position and continues to work with the outside help from the Attorney General’s Office.

Reached for comment, Topham said he is meeting with employment attorneys about any possible next step he might take regarding being fired.

“I’m a whistleblower and Michael Conlon sent a strong message to anyone in his office who calls into question any action he takes. They will be suspended and terminated,” Topham said.

Topham said the letter of termination says he failed to meet the expectations of the management team. He criticized Conlon for his lack of previous prosecutorial experience and First Assistant County Attorney Nicole Schultz-Price. Topham said at one point Schultz-Price took over the controversial Garvey case from him, but insisted he take it back when she realized how complex it was.

Conlon said the issue with the law on strangulation is a problem for many prosecutors. He said the elements of the law include impeding blood flow or impeding breathing by force. When someone is being strangled, they don’t necessarily have observable consequences, he said.

“Sometimes jurors get hung up on more discreet evidence such as bruising or cuts as opposed to the elements of the crime,” Conlon said.