Lawyers for DHHS seek to block criminal defendants from pleading the Fifth
Apr. 15—Lawyers defending the state against a lawsuit alleging abuse of a resident at the Youth Development Center in the 1990s want to block eight planned witnesses who are facing criminal charges and likely will invoke their right against self-incrimination.
Eleven people have been charged with abuse of children in state custody at the Manchester facility and at a Concord facility between 1994 and 2007.
The civil lawsuit, filed by former YDC resident David Meehan in 2020, alleges the state failed in its duty to protect him and was guilty of negligence at YDC in Manchester and the Sununu Youth Services Center complex, which replaced the YDC in 1991.
Meehan and his lawyers have added the names of eight of those charged to the witness list.
Judge Andrew Schulman has yet to make a ruling.
"I would fall off my chair if their criminal lawyers allowed them quote, unquote, allowed them, to testify as witnesses," Schulman said during a brief hearing last week.
Schulman said witnesses "are not allowed in general" to assert the Fifth Amendment in front of the jury.
"The court should exclude these witnesses from appearing before a jury when the jury will not receive any testimony or evidence from them," the defense wrote in a filing.
The defense claims allowing the defendants to plead the Fifth should not be permitted under Rule 403, which states a judge may exclude relevant evidence if its value is substantially outweighed by its potentially prejudicial effects.
"The risk is that putting forth eight criminal defendants who invoke the Fifth Amendment privilege creates the false impression that there are eight witnesses who corroborate what Mr. Meehan alleges," the filing reads.
The Department of Health and Human Services has no control of its former employees, according to the filing.
"The criminal defendants are former employees of DHHS who are being criminally prosecuted for their rogue actions outside the scope of their employment," the filing reads.
DHHS and the criminal defendants are accused of different types of wrongdoing, so "it is in the criminal defendants' interests to try to shift blame from themselves to DHHS, which renders their interests adverse to DHHS."
Attorney David Vicinanzo, who is one of Meehan's lead attorneys, said he is talking with the defendants' criminal lawyers.
The trial is taking place in Rockingham County Superior Court.
Witness: Abuse hard to report
On Monday, Virgil Bossom, a former trainer and investigator at YDC, returned to the stand. He started his testimony Thursday.
Bossom read from a conflict resolution form, which called for residents to first approach their assigned counselor and then the house leader. Access to pens and paper were limited, he testified.
Vicinanzo asked about how the process worked if the counselor was abusive.
"That was an issue, I would think," Bossom said. "If that was the case, how do you rectify the grievance or conflict with the counselor who is the perpetrator?"
The house leader could prevent issues from being reported, Bossom said.
"It was not a good practice as I can see from here," Bossom testified. "It should have been outside the unit for that resolution to take place."
Martha Gaythwaite, an attorney representing the Department of Health and Human Services, showed Bossom a form saying complaints also could be directly submitted to an ombudsman.
One incident Bossom reviewed involved Jeffrey Buskey, a former counselor, giving Meehan a black eye after Meehan spit in his face in April 1998. Meehan had tried to take another resident captive with a screwdriver and attempt to escape, Gaythwaite said.
Buskey, one of several counselors Meehan alleges abused him, has been criminally charged.
Gaythwaite also suggested that staff at YDC may not have agreed with Bossom's training because of his background working with adult prisoners, including workers going into residents' rooms.
"They had their own philosophy about it," Bossom said. "And you could see through reports that most of the time when they entered that room, it ended up in a restraint."
Bossom said that many workers were resistant to training and many residents would remain silent because of the culture.
The defense also has said more witnesses could be added to the list as they express a willingness to testify.