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Attorney General's office backs ruling to not prosecute Phillips Exeter deans

New Hampshire Union Leader

December 15. 2017 9:01PM

EXETER — Attorney General Gordon J. MacDonald’s office concluded Friday that Rockingham County Attorney Patricia G. Conway was well within her prosecutorial discretion when she declined to bring cases against two Phillips Exeter Academy deans on charges they failed to timely report child abuse.

The Attorney General’s office also announced it was declining the request of former Grafton County Attorney Ward Scott to undertake a broad new investigation of sexual misconduct at the boarding school. And despite Scott’s call to do so, MacDonald will only disqualify himself from taking part on Phillips Exeter matters on a “case by case basis” and not broadly, state prosecutors said.

Scott had called for MacDonald to step aside completely because he had once represented the school as its private lawyer.

At issue in the child abuse case was whether Dean of Students Melissa Mischke and Dean of Residential Life Arthur Cosgrove had a legal duty to immediately report child abuse when a victim initially spoke to both of them in October 2015.

Senior Assistant Attorney General Geoffrey Ward spent Nov. 21 and 22 with the case files on this matter. He said differing recollections and other facts led him to conclude Conway did not abuse the broad discretion all county prosecutors have under state law.

“Based on the evidence gathered during your investigation, your decision not to proceed with charges was reasonable under the totality of the circumstances,” Ward wrote in a letter Friday to Conway.

Both deans said the victim at that time did not describe sexual assault conduct, and Ward said the file revealed a history teacher and adviser to the victim, Amy Schwartz, had the same recollection as the deans had.

Ward noted the victim and one of her friends disputed those views.

“The victim’s recollection differed, in that she believed that at that first meeting she had disclosed to Deans Mischek and Cosgrove and to Ms. Schwartz the details of acts that constituted sexual assault,” Ward said. “Another student present at the meeting corroborated the victim’s recollection.”

The Union Leader obtained a 2016 N.H. State Police report that contradicted Phillips Exeter claims the two deans had fully cooperated with the investigation.

Trooper Mallory Littman issued a four-page investigative report critical of the pair.

“During the follow-up investigation, Cosgrove and Mischke were given various opportunities to provide statements about their interactions with the two students ... . Neither Cosgrove nor Mischke have provided statements as to their involvement,” Littman wrote.

In late 2016, state police drafted misdemeanor arrest warrants against Cosgrove and Mischke that prosecutors did not bring against them.

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