MANCHESTER, NH — New Hampshire Attorney General Gordon MacDonald on Tuesday asked Hillsborough County Attorney Michael Conlon to resign amid an uproar over lenient sentences negotiated for the parents of a 20-month-old toddler, who died after ingesting cocaine in their Hevey Street apartment.
Conlon, in a four-page letter to MacDonald dated Sept. 5, said he will not resign because it would not be beneficial to the people of Hillsborough County who elected him.
He said he discussed with office and county leadership MacDonald’s suggestion of how best to support the office by his resigning or having the Attorney General’s Office (AGO) provide a prosecutorial resource to assist with supervision.
“It seems clear from those discussions that the best thing for the office would be for me to remain as county attorney and coordinate with any resources that the Attorney General can provide to continue the progress that I have started since taking control of the office and accomplish our shared goals,” Conlon wrote.
The meeting with the Attorney General came after Manchester police complained vociferously about the sentencing of parents of a toddler who died on May 25, 2018, after ingesting cocaine inside a 473 Hevey St. apartment.
Joshua Garvey, 32, pleaded guilty Friday in Hillsborough County Superior Court North to negligent homicide in the death of his 20-month-old son Tayden Garvey. He also pleaded guilty to common nuisances, for maintaining a drug house.
He was sentenced to 10 to 20 years on the negligent homicide charge and given a suspended sentence of 3 1/2 to 7 years on the common nuisances charge. After serving five years, Garvey is to enter the Delaney Street Treatment Program, a two-year drug treatment program, and if he successfully completes that, then five years of the sentence will be suspended.
The plea bargain means Garvey will serve only five years in the death of his son.
Christen Gelinas was not charged in connection with her child’s death. Instead, she was charged with trafficking cocaine and fentanyl, and common nuisances. She received a total sentence of 8 1/2 to 17 years and forfeited $12,423 to the Manchester Police Department.
Both received pre-trial confinement credit of 458 days.
Judge David Anderson, who presided at both hearings, could have rejected the negotiated pleas but he accepted them.
According to the New Hampshire Union Leader, Donald Topham, the prosecutor on the case, told the judge the case would have been difficult to take to trial. Garvey would have testified he was asleep on the couch when he woke up to find his son unresponsive. Garvey also would have alleged the boy ingested cocaine while his mother was caring for him.
Gelinas, on the other hand, would have testified that the toddler was alive when she gave him to Garvey.
Since two people were in the apartment, Topham said it was difficult to determine who was to blame.
Police Chief Carlo Capano was unavailable to comment on Thursday and Heather Hamel, public information officer, said no one else would be made available to comment.
However, Capano told the Union Leader that the plea bargain was disgusting.
“We have very little, if any confidence that (the county attorney’s) office is going to do the right thing,” Capano told the Manchester Police Commission on Wednesday the newspaper reported. Capano, Assistant Chief Ryan Grant and Capt. Sean Leighton all said they were unhappy with the plea bargain, according to the Union Leader.
The case, the chief said, was rock-solid.
Detectives obtained a search warrant as part of the investigation into the child’s death. They recovered 28.1 grams of heroin, 11.8 grams of cocaine, 15.3 grams of crack cocaine and three Suboxone strips with an estimated street value of over $5,400. They also confiscated $12,423 in cash.
“When you have a 2-year-old who loses his life because of the incompetence of his parents who are involved in the drug world, that’s one of the most heinous crimes that you can have,” Capano told the newspaper.
Hillsborough County Attorney Michael Conlon said police met with Topham prior to the sentencing. Officers expressed their displeasure with the proposed plea bargain, saying they wanted both parents to be sentenced to 10 to 20 years.
“He didn’t follow up with them,” Conlon said of Topham. Police only learned of the plea bargain when it was reported on social media.
Conlon said he acted swiftly internally after learning of the situation. Plea negotiations now will be reviewed by First Assistant County Attorney Nicole Schulz-Price — before any agreement is reached with the defense.
He said he met with Capano and agreed his office and police need to communicate better. “We’re not always going to agree,” he said both acknowledged.
The lenient sentencing comes on the heels of an uproar last month in the case of Damien Seace, 35, accused in the beating death of Jennifer Burpee, 45, inside an apartment in the Henry J. Pariseau hi-rise.
Last Oct. 29, Seace, 35, was arrested for second-degree assault after telling “J.B.” he was going to murder and bury her as he put his hands around her neck and strangled her, according to court documents on file in Hillsborough County Superior Court North. The charges were later dropped but the court file didn’t indicate why. Conlon said the charge was nol-prossed because Burpee recanted.
In July, Seace allegedly beat Burpee to death with a piece of furniture.
Conlon said when he took over the office there were no practices and procedures in place. Now, plea agreements and any cases to be nol-prossed must first be reviewed by a supervising attorney.
He said the office also was in a state of crisis with deep wounds from years of neglect. He convinced the county commissioners to provide funding so he could hire John Harding, an attorney with 19 years experience with the Attorney General’s Office and with the Hillsborough County Attorney’s Office. He recently hired another attorney who was with Judge Advocate General’s office for nine years.
Conlon said he received a letter last March from Deputy Attorney General Jane E. Young regarding a review of the office that had taken place under his predecessor Dennis Hogan.
In her letter, Young said First Assistants maintain an unreasonably full and complex caseload, making it impossible for them to manage and mentor the other attorneys.
The review noted the office lacked any second-tier supervisory attorneys to provide management and guidance to newer attorneys. “As such, the current structure of the office does not lead to the effective administration of justice on behalf of the citizens of Hillsborough County,” Young wrote.
Among the recommendations was for Conlon to hire an attorney with substantial country attorney prosecutorial experience to work directly with him to create effective prosecution-specific policies and procedures. Harding has 19 years experience as an attorney, many of them as an assistant Hillsborough County Attorney.
Young also recommended Conlon implement policies and procedures (the office had none); have more management oversight; have the county attorney more involved in the day-to-day operations.
Conlon wrote MacDonald that he decided to run for county attorney because of concerns expressed regarding inattention of the previous county attorney, the importance of the office’s successful operation and his professional experience in working with organizations going through a crisis and successfully working to deliver improvements.
“It should be clear to all paying attention that the Hillsborough County Attorney’s Office has suffered greatly under its recent stewards; its staff has workloads more than double other offices around the state, has struggled with morale and staff retention, and its ability to effectively communicate with law enforcement and other agencies regarding cases had eroded into a state of crisis,” he wrote.
He said the basis for MacDonald asking him to resign or for the AGO to provide prosecutorial assistance is a lack of confidence from police chiefs.
A few of the chiefs, he wrote, are upset at how certain cases have been handled and a particular one most recently, presumably the Garvey/Gelinas sentencing.
“Many of the chiefs can easily think about a time when they were disappointed in communication surrounding cases that were handled by my office,” he wrote. “This includes many matters that happened before I became county attorney. Unfortunately, this conclusion is not based on any communication with me or any member of my office as to the case or reasons for this struggle to effectively communicate. If the chiefs of police of Hillsborough County are disappointed and unsatisfied with the communication capabilities of my office, count me among them.”
During his training at the AGO, Conlon said he was cautioned about the poor state of operation at the Hillsborough County Attorney’s Office.
“At no time were any suggestions made about priorities or needs of the office, about recommendations to address known issues, or anything similar. The message was clear: good luck, we will take your call if you need us, but otherwise we can’t help you,” he wrote.
He wrote that the AGO’s review of the office did not include any suggestions or direction on aspects of prosecutorial operations that would be prioritized; it did not recommend that a policy on nol prossing charges would be prioritized; and it did not recommend that standards regarding communication with law enforcement agencies be implemented for plea negotiations or case dispositions.
“Additionally, no resources from the AGO would be made available to accomplish these important goals,” he wrote.
The budget process began in March, he wrote, but budget dollars were not available until July and so the office continued to struggle with the same workload, disrupted by employees leaving for other ventures.
He said he has implemented an open-door policy in an effort to win the trust of law enforcement and the county’s police chiefs.
