A veteran prosecutor tapped to provide expertise in Hillsborough County engineered a 2½-year prison sentence in a 2017 child-overdose case — a sentence that is about half of that provided in the controversial plea bargain that preceded Attorney General Gordon MacDonald’s takeover of the Hillsborough County Attorney’s office.
As part of the 2017 plea deal arranged by prosecutor David Rotman, Penacook resident Brandon Ross pleaded guilty to a drug exposure charge in the death of his infant son, according to court records. Prosecutors dropped charges of manslaughter and negligent homicide, and Ross got a 2½- to 5-year sentence.
Rotman, a former prosecutor in Merrimack and Strafford counties, is expected to be named an assistant attorney general on Wednesday. His job calls for training prosecutors statewide, but he will initially provide much of the day-to-day guidance at the Hillsborough County Attorney Office, MacDonald’s office confirmed on Tuesday.
Rotman’s plea bargain in the Ross case compares to the plea bargain approved earlier this month for Manchester resident Joshua Garvey, whose son died of a cocaine overdose last year. Garvey’s minimum sentence entails five years behind bars, followed by a mandatory two years in a residential drug treatment program.
The Ross case “is an example of why I settled the (Garvey) case the way I did,” said Donald Topham, the Hillsborough County prosecutor who was suspended from his job following the Garvey plea bargain.
“I knew it was the best I was ever going to get. I think I did a pretty good job in the case,” Topham said.
According to previous news articles, Cayden Ross was living in filthy conditions in his parents’ Penacook trailer where needles and a marijuana pipe were in plain sight. The boy died after his father’s friend prepared the baby’s bottle with hands laced with methamphetamine. Cayden Ross’ mother got two years probation and will be tormented with the fact she contributed to her son’s death, Rotman said during her sentencing.
Rotman and former Manchester Police Chief David Mara, who will assume prosecutorial oversight of the county attorney’s office, go before the Executive Council on Wednesday for their appointment as assistant attorneys general. They will earn salaries of $95,000 and $96,000, respectively, if confirmed.
The takeover has caused grumblings among lawyers and legal experts. Some question Mara’s experience as a prosecutor; others wonder if MacDonald is capitulating to police pressure.
The Garvey plea deal drew the ire of Manchester Police Chief Carlo Capano and other top Manchester police officials earlier this month. Days after police complained, MacDonald announced that his office was taking over the prosecutorial duties of the office.
Deputy Attorney General Jane Young said her office’s concern with the Garvey plea bargain centered on the fact that Hillsborough County Attorney Michael Conlon and Manchester police were not aware of the agreement.
“This isn’t the numbers. I don’t know the facts of that case,” Young said about Garvey. “You can have philosophical differences. The issue here was the lack of knowledge (by Conlon).”
Young would not weigh in on the propriety of the Garvey plea bargain, saying she does not know all the facts. Nor would she agree to a suggestion that her office review the case and comment on it.
“That’s the sentence that was imposed. Any review is not going to change it,” she said.
Topham has felt the need to justify the sentence, given Capano’s criticism. The chief called it “disgusting” and faulted the Hillsborough County Attorney’s office for not running it by his department.
Topham said he could not win the case at trial, given the uncertainty of when the child died and which parent had custody at the time. He said he spoke to Rotman about the Ross case for 40 minutes earlier this year before deciding on the Garvey plea bargain.
Capano has told the media he wanted a minimum 10-year sentence, all behind bars. But Topham said that’s not the case; Capano’s detective lieutenant had demanded a minimum 20-year sentence, going to trial for anything less.
Topham said when he took the job as assistant county attorney, then-County Attorney Dennis Hogan assured him he would be able to call his own shots.
“I don’t understand why the people of Manchester are not more upset about this. This is the definition of a police state, when the police themselves decide what happens in the justice system,” Topham said.
He said he would have done nothing different in the Garvey case.
County Attorney Conlon said Topham’s employment status remains under review and a final determination has not been made. Topham said he would like to keep his job but wants an apology from Capano.
Both Topham and Conlon differed over who was responsible for sharing information in the Garvey case.
Topham said Conlon never asked for any information in the case. Conlon said Topham never informed him about the case, despite an office policy that the elected county attorney be kept abreast of media-sensitive cases.
Conlon said he did not want to give his thoughts on the Garvey sentence, given his ethical responsibilities as a prosecutor.
Meanwhile, a Merrimack County judge in March approved Brandon Ross for work release from prison, eight months before the completion of his minimum sentence.