No New Trial For Convicted YDC Abuser, Judge Rules

By DAMIEN FISHER, InDepthNH.org, InDepth NH

Convicted Sununu Youth Services Center abuser Brad Asbury is not getting a new trial as Hillsborough Superior Court Judge William Delker ruled there is no new evidence.

Asbury is serving 20 to 40 years in state prison after he was convicted on two felony counts of being an accomplice to the 1998 rape of Sununu Youth Services Center resident Michael Gilpatrick. Gilpatrick was 14 at the time of the rape. SYSC in Manchester was known as the Youth Development Center or YDC at the time.

Asbury is cast as a ringleader to many alleged abusers named in the criminal cases and civil lawsuits. He is the first alleged abuser convicted out of the relative handful of men indicted for the rampant physical and sexual abuse inside YDC over five decades.

But after his convictions, Asbury asked Delker to allow a whole new trial based on supposedly new evidence that was not available before the case went in front of a jury. Delker’s 30-page order issued late last month denied the request for a new trial finding this “new” evidence is nothing of the sort.

“[T]he Court has determined that these pieces of evidence allegedly discovered after trial were either already available, cumulative, inadmissible, or would probably not cause an acquittal upon retrial,” Delker wrote.

Asbury and his attorney, David Rothstein, believe they uncovered proof after the conviction that Gilpatrick lied during his testimony. But Delker found not only was this evidence known to them before the trial, it does not prove Gilpatrick was untruthful.

One of the key pieces of “new” evidence Asbury and Rothstein push is the sexual abuse allegation Gilpatrick made against a YDC teacher that never resulted in charges. Gilpatrick consistently claimed he was abused by a teacher known as “Ms. D,” though the allegation was never pursued by police.

Asbury and Rothstein claim they only found the teacher, now known as L.L. due to her married name, after the trial. This is due to the failure of their prior defense investigator to account for L.L.’s married name change, not to any state action to hide her identity, according to Delker.

Further, the fact that L.L. denied Gilpatrick’s allegation when she was finally interviewed by the defense investigator does not mean all that much, Delker wrote. Asbury and Rothstein claim Gilpatrick’s allegations against L.L. are “demonstrably false,” based on her denial and other testimony about YDC operations.

“Although L.L. denied the allegations, and her testimony about the school’s practices cast doubt on [Gilpatrick’s] claims against her, the allegations have by no means been demonstrated to be false. L.L. was never charged, but the fact she was never arrested does not render the allegations ‘demonstrably false,’” Delker wrote.

The L.L. evidence does not change anything since it is not definitive proof Gilpatrick lied, and most importantly, it is not new, Delker wrote.

“Without the ability to introduce evidence showing that the L.L. accusations are ‘demonstrably false,’ the defendant is left only with the opportunity to cross-examine [Gilpatrick] about these accusations—an opportunity which the Court has already determined the defense was responsible for not pursuing,” Delker wrote.

The other supposedly new evidence includes Gilpatrick’s inconsistent statements made while testifying against YDC staffer Stephen Murphy during his first trial. Murphy was tried on eight counts during his first trial, which ended with a hung jury. The second trial ended with the jury finding him not guilty on three sexual assault charges, though they could not reach a verdict on the remaining five charges. Murphy’s third trial ended with acquittals. A fourth trial on allegations from a different victim is pending.

Asbury and Rothstein claim Murphy’s legal team uncovered the inconsistencies during their cross examination two months after Asbury’s conviction. But much of Gilpatrick’s contested testimony could have been used in Asbury’s trial defense, Delker wrote. Gilpatrick’s supposedly inconsistent statements were already on the record before Asbury’s trial, and there was nothing preventing Rothstein from using those statements for his cross examination. Instead, Asbury’s defense team is trying to change its trial strategy after the trial, Delker wrote.

“While it may have been a strategic decision by [Asbury] not to mention these allegations, he cannot now claim that the Court’s permitting a different strategy constitutes newly discovered evidence justifying a new trial,” Delker wrote.

Delker further noted that Murphy’s cross examination of Gilpatrick at the first trial did not result in an acquittal, but a hung jury.

“There is no reason to think a jury would reach a different outcome in a retrial of Mr. Asbury’s case if the defense was permitted to explore that line of examination,” Delker wrote.

The claims Asbury and Rothstein brought forward from Gilpatrick’s disgruntled ex-wife also do not make the cut, Delker wrote. The ex-wife, known as K.M. in the written order, testified during a recent evidentiary hearing that Gilpatrick never claimed he was abused, and made comments more than a decade ago about wanting to lie about being abused in order to get a large cash settlement.

But K.M.’s testimony amounts to inadmissible hearsay offered by a less than credible witness, Delker wrote.

“[E]ven if it was admissible, the Court does not find K.M. ‘s testimony credible such that it would probably result in a new jury acquitting the defendant. Credibility issues plague K.M.’s claims,” Delker wrote.

Finally, Asbury and Rothstein claim Gilpatrick’s recent personal spending is evidence that he lied about the abuse for money. The New Hampshire Attorney General’s Office settled with Gilpatrick last year, paying him $10 million to end his lawsuit against the state.

Since that settlement came together, Gilpatrick sold his weatherproofing business, he and his family have moved out of state, and they bought a new house and vehicles. None of which is evidence that Gilpatrick lied, Delker wrote.

“[F]ollowing the defendant’s reasoning, [Gilpatrick’s] spending in the years that follow would provide grounds for a new trial because it shows that money was important to him. The Court declines to scrutinize in perpetuity how [Gilpatrick] spends his money. Nothing in his testimony required him to continue to live a modest life after being awarded ‘generational wealth’ for suffering the type of abuse he described. It is unlikely a jury would see it differently,” Delker wrote.

Asbury isn’t done working to overturn his convictions. With Delker’s denial on the record, Asbury is free to pursue his appeal to the New Hampshire Supreme Court.

This story was originally published by InDepth NH.