Defense blasts AG, seeks dismissal in Farmington double-homicide case
DOVER – Timothy Verrill’s defense blasted the state Attorney General’s Office Thursday for not only failing to turn over voluminous evidence before his double homicide trial ended in mistrial last fall, but also for failing to examine past homicide cases to determine what went wrong beyond blaming “everybody else.”
Verrill, 37, of Dover is charged with stabbing and bludgeoning Christine Sullivan, 48, Jenna Pellegrini, 32, to death in Farmington on Jan. 27, 2017, in what has been characterized as drug-related murders. The defense theory has been that someone else committed the murders.
David Rothstein, deputy director of the Public Defender’s Office, summarized two days of hearing in Strafford County Superior Court and Verrill’s motion to dismiss the murder charges filed by public defenders Meredith Lugo and Julia Nye.
He pointed to three recent murder cases where similar failures to turn over evidence occurred and suggested more homicide cases should be reviewed to make sure the defendants received all exculpatory evidence guaranteed by the Constitution.
Rothstein told Judge Mark Howard Thursday that prosecutors are responsible for turning over the discovery materials despite their blaming the Major Crimes Unit.
“What they don’t seem to get is they are the boss on the homicide cases,” Rothstein said of prosecutors. “They are the place where the buck is supposed to stop.”
But prosecutors never admitted to doing anything wrong, he said. Instead they blamed disclosure delays and failures on the State Police Major Crimes Unit or the spreadsheet the lead investigator created because he didn’t have a proper document management system, Rothstein said.
“(T)he head of homicide investigation prosecutions does not take responsibility for the flow of information or the lack of flow of information or the complete and total disorganization of its investigative arm (Major Crimes Unit)… it’s their constitutional responsibility to make sure it runs like clockwork,” Rothstein said.
Rothstein said it made him wonder as longtime defense counsel who always vouched for their integrity in the past:
“How many homicide trials have you done, how many pleas have you done, how many homicide defendants have been sentenced to 20, 30, 40, 50 years, death” where there is still undisclosed information deep in the recesses of the Major Crimes Unit that should have been turned over, Rothstein asked.
Verrill’s motion asks Howard to dismiss the charges with prejudice, meaning they can’t be brought forward again.
The state Attorney General’s Office doesn’t deny there were serious discovery failures, but insist they weren’t serious enough to dismiss the charges altogether.
State Police Lt. Brian Strong, who had been the lead investigator responsible for keeping track of the probe, testified earlier that he had no data management system and tried to keep track of all of the investigative reports on a spreadsheet he created.
The original reports were kept on the investigators’ individual computers that Strong couldn’t access. He also said he had no training on data management.
“Every 7-11 in the country has a data management system to see how many candy bars it has,” Rothstein said. “But this (state police) unit is stuck somewhere in the ’70s.”
An audit was conducted after the mistrial. “Did this audit lead to change?” Rothstein asked. He said no change had resulted and no one reviewed the 11 homicide cases previously led by Strong.
Rothstein pointed to problems in the Massachusetts drug lab that caused numerous drug cases to be dismissed and the FBI hair analysis case in which many other cases were re-examined and the reasons for the failure made public.
Rothstein said an investigation by the Drug Enforcement Administration that is at the heart of the double homicide still hasn’t been turned over even after the mistrial Oct. 31, 2019.
“It seems easier to develop a vaccine for the coronavirus than it is to get a report from the DEA,” Rothstein said.
Senior Assistant Attorney General Peter Hinckley said the parties have extensively briefed the motion and noted that the discovery violations were serious.
Attorney General Gordon MacDonald and others in his office agree that the discovery violations in Verrill’s case have been serious, according to their objection, but insist that they haven’t prejudiced Verrill to the point of such a drastic remedy. They were not systemic and are not likely to happen again, the state insists.
“Although the acknowledged Discovery violations in this case have been serious, they were neither willful nor malicious, and were the product of unique and unprecedented negligent oversight rather than systematic dysfunction by either police or prosecutors,” according to the state’s objection filed June 8.
But Lugo and Nye argued: “Dismissal is warranted because the state has failed to provide the defense with material and exculpatory evidence, acting in bad faith and reckless disregard of its constitutional obligations.”
On Thursday, Hinckley said he was “sickened and embarrassed” by the discovery violations that continued even after he told the court all discovery had been turned over. He also said changes have been made at the institutional level.
“I am in no way excusing the violations that occurred in this case,” Hinckley said. They were the state’s responsibility, he said.
“What happened here is worthy of harsh criticism,” Hinckley said. “It’s worthy of severe sanction by this court whether that sanction be trial or case specific sanction, whether it be individual sanctions, whether that be institutional sanction – this case is not worthy of the ultimate punishment. The ultimate punishment of dismissal with prejudice is unwarranted,” Hinckley said.
He said the defense has argued systematic institutional malfeasance, but there is no evidence of a custom or culture of misconduct, Hinckley said.
Hinckley called some of the defense claims a “stretch.” “This case is an anomaly” that demonstrates failure of the individuals rather than failure at institutional level, Hinckley said, adding he has been sickened by what happened.
“Frankly it has and does sicken me” that a mistrial occurred in a case that was going so well for the state, he said, especially in a case into which so much time had been placed and so many resources by everyone involved.
He said it sickened him to have to inform the victims’ families each time that new non-disclosures were discovered.
“It sickened and embarrassed me to tell Judge Houran about the continued discovery issues in this case despite my representation,” Hinkley said.
He said he has been a homicide prosecutor in the Attorney General’s Office for 13 years and has prosecuted hundreds of homicides. Hinckley said he can correctly be called “prickly, argumentative, litigious, sarcastic, but never have I had such a discovery issue before.”
He and Ward never tried to deceive the defense, he said.
“The design was to suck it up even though it was embarrassing and painful on many personal and professional levels,” Hinckley said.