MANCHESTER — Police received a tip about drug use by the father of 2-year-old Tayden Garvey six months before the boy died of a cocaine overdose, according to police records obtained by the New Hampshire Union Leader.
According to a police dispatch log, the toddler’s mother had called police on Nov. 8, 2017, to report that the boy’s father, Joshua Garvey, had resumed doing drugs.
The baby was in the house with a babysitter, and Garvey, who was on probation at the time, was out of the house attempting to buy drugs, the mom told police.
But when police met with Tayden’s mother, Christen Gelinas, they arrested her on an outstanding warrant, a police report reads.
“If they’d have gone up there and saw the condition of the apartment and a child was in the custody of a person using drugs, different things would have happened,” said Don Topham, the assistant Hillsborough County Attorney who prosecuted Garvey and Gelinas.
Last week, Topham convinced a judge to approve controversial plea bargains for the parents. Manchester Police Chief Carlo Capano has called the deals disgusting and said they have caused him to lose confidence in the Hillsborough County Attorney’s office.
Capano said Topham’s criticism of the police department is an effort to deflect from the outcry over the plea deal, which puts Garvey behind bars for five years.
“To try to insinuate the Manchester Police Department is responsible for this (death) is absolutely absurd,” Capano said.
The Union Leader obtained copies of police and child protection reports regarding Gelinas, Garvey and the child. The reports show that Garvey was twice arrested on drug trafficking charges in 2016 — shortly before and shortly after Tayden’s birth.
DCYF opened a file on Tayden when cocaine was found in his blood at birth. The file contains no indication that police notified the child protection agency about Gelinas’ report.
In the log of her call, Gelinas told police that Garvey had kicked her out the previous night. During the call, Gelinas said Garvey was not currently at home; he was out trying to buy drugs. She said Tayden was in the care of a babysitter. And she said Garvey was breaking his probation by doing drugs.
Capano noted that Gelinas did not report the child was in immediate danger, which would have prompted police to take action. He said her allegations about Garvey would not prompt a report to DCYF or probation officers.
”This isn’t Las Vegas”
In an interview Thursday, Topham responded strongly to Capano’s criticism of the plea bargain. He said the case could not be won at trial, and he faulted Capano for telling him to take it to trial regardless.
“He told me to see what happens. That’s what Capano doesn’t understand. This isn’t Las Vegas. You don’t take people to trial and hope you get lucky,” Topham said.
Under the terms of the plea bargain, Garvey will spend five years behind bars, followed by a two-year drug treatment program. If he fails in the program, he would have to spend another five years in prison. His actual sentence is 10 to 20 years for negligent homicide. Gelinas pleaded guilty to drug trafficking charges and will spend the next seven years in prison.
Capano said he wanted to see Garvey imprisoned for a minimum of 10 years. He said police were surprised to learn of the plea deal because Topham had continually assured detectives it was a rock-solid case.
Topham said the case had many difficulties. The medical examiner could not prove the exact time the child died, so it was unclear which parent was responsible for the child when he died. And a judge had refused a request by prosecutors to hold one trial for both parents.
One of the Attorney General’s top prosecutors, Jeffery Strelzin, had refused to take the case, Topham said. And Topham said the first assistant in the county attorney office, Nichole Schultz-Price, had looked at the case and passed on it too.
Deputy Attorney General Jane Young said Strelzin met with Topham and the other prosecutor in the case, recently deceased John Quinlan, to provide advice, but the Attorney General’s office prosecutors don’t normally handle negligent homicide cases.
What pushed him over the edge, Topham said, was the fact that Gelinas’ defense attorney uncovered information about Gelinas’ November 2017 call to police. That information should have been in his file, he said.
When a prosecutor takes a case, police are expected to turn over all information to the prosecutor. The fact Manchester police didn’t do so could amount to obstruction of government administration, he said.
“That’s something the Attorney General needs to look into. Was it merely incompetence or a crime?” Topham said. He noted that Manchester police have not turned over information in other cases.
Capano called Topham’s remark insane.
Topham said he informed police about the plea bargain, and they told him they didn’t like it and to take it to trial.
“They don’t have veto power over a prosecution,” he said.
Capano said he agrees, and police respect the process. But in this case, he said, police found out about the sentence by social media.
Topham said he’s one of three experienced lawyers in the office, having practiced criminal law since 2002. He has been a prosecutor since 2016 and worked at the Hillsborough County Attorney’s office for the last 16 months.
Meanwhile, Topham said he expects to be fired Friday. He said County Attorney Michael Conlon suspended him with pay on Tuesday, after the police outcry over the plea bargain.
Conlon would not discuss Topham’s future with the office. Nor would he weigh in on the terms of the plea bargain. But had Topham notified him of the deal, Conlon said he could have worked to get everyone on board and make changes if necessary.
But Topham said Conlon wasn’t in the office last week after Tuesday; the plea bargain went before a judge on Friday.
“My job as a prosecutor is to seek justice. Not to advance Michael Conlon’s political career.”