DOVER - Defense counsel David Rothstein used the prosecution's own words to bludgeon them with charges of gross prosecutorial misconduct and malfeasance on Thursday during final arguments in a motion to dismiss the Timothy Verrill murder case.
Referencing an Oct. 25 email sent to the court and the defense after several discovery issues were unearthed earlier in the week during last fall's trial, he quoted how the prosecution wrote, "Since Wednesday MCU (Major Crimes Unit) has taken every step to make sure these discovery issues (are handled); we want to ensure a fair trial for Mr. Verrill. We do not deny there is a violation, (but after) going over everything over 24 hours (we can say) that there is nothing left."
But there was something left, including a prepolygraph interview with a witness in the case, surveillance video of a meet up at the Farmington branch of Holy Rosary Credit Union where the two women allegedly killed by Verrill met with two alleged drug enterprise co-conspirators and a recorded phone call from convicted drug trafficker Dean Smoronk to the brother of Smoronk's longtime girlfriend Christine Sullivan, one of the woman slain in Smoronk's Farmington home on Jan. 27, 2017..
"Everything in the email turns out to be false," Rothstein said. "That's reckless."
Thursday was the third and final day of a motion to dismiss hearing in Strafford County Superior Court.
Verrill, 37, of Dover, is facing two counts of first-degree murder in the Jan. 27, 2017, stabbing and bludgeoning deaths of Sullivan, 48, of 979 Meaderboro Road, Farmington, and Jenna Pellegrini, 32, of Barrington. He faces life in prison without parole if found guilty.
Rothstein spent about an hour in final arguments, characterizing prosecutors, the State Police MCU, even the Attorney General's Office for their "reckless disregard and indifference toward discovery obligations."
"The culture of management, their indifferent attitude in shielding large caches of exculpatory evidence is stunning," Rothstein asserted.
He recounted how the defense learned of material discovery in the case purely by chance after a private investigator in Arizona contacted the public defender's office in Concord to let them know of information they should have had before them.
Rothstein imagined aloud what might have happened had that early tipoff of problematic discovery issues not come to light.
He said it was also stunning that two MCU investigators didn't think they had to turn in reports and that they didn't use the document retrieval system VALOR that was supposedly in place with NH State Police.
"These prosecutors take no responsibility for extreme negligence of the MCU," Rothstein said. "Their capital is completely spent."
Rothstein also decried the DEA's policy of not turning over everything from their parallel probe into Smoronk's and Sullivan's alleged drug enterprise to the prosecutors and defense lawyers working the homicide case.
"If we can't be assured the DEA is turning over all (their evidence) the case is permanently tainted," he said. "But I'm sure it's easier to cure the Coronavirus than get info from the DEA."
Assistant Attorney General Peter Hinckley admitted to the court that there was "egregious misconduct at the individual level but that it wasn't reckless."
"What happened here is worthy of sanction, whether it be case or individual or institutional sanctions," Hinckley said, "but it does not warrant dismissal with prejudice."
A dismissal with prejudice finding by Superior Court Judge Mark Howard would mean the case is closed and Verrill goes free.
Hinckley also argued there is no evidence of a "culture of misconduct" in either the AG's Office or MCU.
"This was a failure of an individual level rather than the institutional level," he added.
Hinckley also spoke of the personal disgust he had regarding discovery, which is the process by which prosecutors are obliged to share with defense all evidence gathered.
"It sickened me that the families had to be told about the issue," he said. "It sickened me that I had to tell (defense) counsel and it sickened me that I had to talk to Judge (Steven) Houran about more issues after I told him everything was done."
Hinckley finished up by adding that they would have to ensure that pertinent info to the murder case developed by DEA would have to be shared in some fashion.
Judge Howard agreed that DEA evidence would have to be turned over before the case goes to trial again if it is not dismissed.