Suspended prosecutor: Manchester Police withheld evidence in toddler death

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Suspended Assistant Hillsborough County Attorney Don Topham. Youtube video screen shot from his prior practice as a defense attorney. Via YouTube

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MANCHESTER, NH – Manchester police withheld “crucial” evidence in the investigation into the cocaine overdose death of a toddler, according to the prosecutor who has been suspended over his handling of the plea deal in the case.

Assistant Hillsborough County Attorney Don Topham said Manchester police withheld from prosecutors information about a 911 call made by the boy’s mother well before his May 25, 2018 death.

Topham has been suspended with pay since Manchester Police Chief Carlo Capano publicly criticized his plea agreement with Joshua Garvey earlier this month.

Garvey pleaded guilty to negligent homicide in the death of his son, Tayden Garvey, 20 months old, and also to maintaining a drug house. He 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, Topham said, pointing out that the full sentence has been misreported.

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 Jane Young cites in the state’s decision to take over prosecutorial duties from Hillsborough County Attorney Michael Conlon, who suspended Topham on Sept. 3 after Capano complained. Conlon continues as the elected county attorney.

Topham said he learned from Gelinas’ defense attorneys in August  2019, just last month, that they filed a right-to-know request for a 911 call she made to Manchester police in November of 2017.

“(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.

Manchester police sent a patrol car and arrested Gelinas on an outstanding warrant on drug charges, Topham said.

“They (police) never checked on the kid,” Topham said. Police also never shared the existence of the 911 call with prosecutors, he said.

“At best, that’s sloppy investigation. At worst it’s a crime, obstructing government administration.

“That’s crucial evidence,” Topham said. The defense attorneys were not required to tell him about the call, but Manchester police were obligated to, he said.

That night, Manchester police could have called Joshua Garvey’s probation officer and reported he was out getting drugs.

“And this could have had a different ending for this child,” Topham said. “Withholding information from the prosecutor in a murder investigation. Is it just incompetence or criminal?” Topham asked.

That’s up to the attorney general to determine, Topham said.

When contacted Monday, Chief Capano said he will not go back and forth on this topic.

“At this point, the Attorney General’s Office will be overseeing operations and the Manchester Police Department will work with the AG’s and HCAO to move forward and ensure that our community is getting the best possible services,” Capano said.

“As a police chief, I fully understand that the police do not determine plea deals, but I also understand how important communication is regarding important cases.”

Topham also said when Tayden was born, he was addicted to cocaine so the state Division for Children Youth and Families got involved with the family.

About a year later, DCYF withdrew from the case, he said. Topham declined to say why because DCYF records are confidential.

The case was also a difficult one from a prosecutor’s point of view because the mother handed the child to the father while he was sleeping on the couch at their Hevey Street apartment in Manchester the day the boy died, Topham said.

Had the case gone to trial they would have both claimed their child’s death was the other’s fault, Topham said.

“The issue is how do we assign responsibility for the child’s death,” he said.

Topham said he met with Manchester police and explained that the 10-year minimum was in line with other child deaths in the state and even longer.

He said Capano told the press he wanted 10 to 20 years in prison for Garvey or for Topham to take the case to trial.

“That’s not what (Capano) said. He said 20 to 40 years or go to trial,” Topham said. “Because the Manchester police chief calls and yells at (Conlon), that’s when I’m called in and suspended.”

Topham said basically he’s been on a paid vacation for two weeks.

“This is a fairly complicated story,” Topham said. “Firing me is not going to help Michael Conlon’s problems.”

He said about 20 people out of a workforce of 31 have left during his relatively brief tenure.

“What does that tell you.  It’s a toxic environment,” Topham said.

Conlon didn’t immediately return a call seeking comment on Monday.