A former prosecutor fired by Hillsborough County Attorney Michael Conlon is suing Conlon for wrongful termination.
Attorney Donald Topham was placed on paid administrative leave in September, four days after negotiating a controversial plea deal with Christen Gelinas and Joshua Garvey, a Manchester couple whose 20 month-old son died after ingesting illegal drugs in their apartment, where they sold fentanyl, marijuana, and cocaine.
The case became a lightning rod at the Hillsborough County Attorney’s Office, drawing criticism from the Manchester Police Department and the New Hampshire Attorney General’s office, which faulted Conlon for being unaware of the case.
The Attorney General assumed management of the Hillsborough County Attorney's Office from Conlon a week later. This move stripped Conlon of his legal oversight, but he continues in his elected role there, overseeing personnel and administrative issues. In October, he fired Topham, who was on administrative leave at the time, for “violations of the expectations of the management team.”
In his complaint, Topham alleges that in firing him, Conlon “was scapegoating Attorney Topham for the Police Department’s mistrust of Attorney Conlon, which Attorney Conlon had earned himself over several months of ineffective leadership.”
Documents obtained through a Right-to-Know request by NHPR reveal frustration between the Hillsborough County Attorney’s Office and police about the Garvey/Gelinas case for months.
In August, Topham asked police for feedback on his plan to offer a 12.5 to 25-year sentence to Garvey, in exchange for Garvey testifying against the mother of his son, Gelinas, who was also facing charges. (Police collaborate closely with prosecutors, though the terms of a deal are up to the prosecutor, defense attorney, and judge).
Lieutenant Matthew Larochelle wrote in an email Topham that he respected his opinion but that “it seems that more often than not there are stiffer penalties for other less serious offenses.”
In the email, Larochelle suggested a deal “considerably higher (20-40 just to throw something out.)” According to other emails exchanged among police, other officers opposed a plea deal and wanted the case to go to trial. After a follow-up meeting with Topham on August 19, Larochelle told his superiors that Topham planned to aim for a deal of 10 to 20 years for Garvey.
But in late August, Garvey received a 10-year sentence, to be reduced to five if he successfully completes a two-year drug treatment program in New York. Gelinas received a 8.5-year sentence solely for drug charges.
The Manchester police were outraged, documents show.
Lt. LaRochelle emailed Chief of Police Carlo Capano that weekend, saying, “I wil not go into my level of disgust with this plea deal but will say this was something that was done without our knowledge or agreement.”
Ryan Grant, Manchester's assistant chief of police, shared in an email to Assistant Attorney General Jane Young his “lack of confidence in the [Hillsborough County Attorney] office, the lack of management and quite frankly, our inability to rely on them for anything.”
He wrote to Young, “I can provide you with much more on this and other cases where justice has not been served by members of this incompetent office.”
Two days later, facing mounting pressure from the police and Attorney General’s office over his office’s handling of high-profile cases, Hillsborough County Attorney Michael Conlon placed Topham on leave.
In the lawsuit, Topham alleges that he handled the Gelinas and Garvey cases properly, receiving guidance from respected attorneys who had dealt with similar cases and gotten lighter sentences. He says that soon after the August 19 meeting, new allegations emerged that Gelinas had called the Manchester police concerned that her toddler wasn’t safe with Garvey, weakening his case against her.
Topham also alleges that Conlon violated the New Hamsphire Whistleblowers’ Protection Act, by firing Topham after he raised concerns about the office while on administrative leave.
Conlon declined to comment on the lawsuit.