Commissioner objects to finding on alleged use of chokehold

By Pat Grossmith-Granite State News Collaborative

The N.H. Department of Corrections is asking the state Supreme Court to order a new hearing after an appeals board ordered reinstatement of a corrections officer.

The officer was fired for allegedly using excessive force on a cuffed and shackled inmate who said he was suicidal.

The corrections department contends the Personnel Appeals Board erred when it denied it a full evidentiary hearing in the termination of Lt. Thomas Macholl.

“I do disagree with the finding,” said Corrections Commissioner Helen Hanks. She said it is important for residents of the prison — she does not describe those incarcerated as inmates or prisoners — to be treated with dignity and respect. “In this particular instance, it did not exist,” she said.

However, the Personnel Appeals Board — a panel appointed by the governor whose four members include two attorneys —  found that “no reasonable factfinder could determine that Lt. Macholl had used inappropriate or excessive force on the inmate.”

The board ruled that Macholl was terminated unjustly and ordered the corrections department to reinstate him. Macholl had worked at the state prison for seven years. The appeals board said that until April 27, 2023, Macholl had an exemplary record and had been regularly promoted. 

The appeals board didn’t let Macholl off the hook entirely. It ordered that he be suspended without pay for 20 days for failing to comply with the corrections department’s Suicide Prevention Policy. To terminate him for violating that policy would be “an unjust result,” according to the board’s order on Macholl’s motion for summary judgment dated March 27, 2024.

Macholl was a longtime Connecticut state trooper before being hired in New Hampshire in 2016 as a corrections officer. He had never faced disciplinary action until April 27, 2023, when he was fired.

The corrections department asked for a rehearing on the appeals board decision, but the board rejected the request on May 21, 2024. A month later, the corrections department filed its appeal to the state Supreme Court.

"While the Department of Corrections has appealed this matter to the Supreme Court, we remain confident that the Personnel Appeals Board reached the correct and lawful decision when it concluded that Lt. Macholl used appropriate force for a lawful purpose and overturned his termination,” said Gary Snyder, the State Employees Association attorney who represented Macholl, in an email statement. “We are confident the Supreme Court will uphold the Board's decision on appeal and hope that the Department will recognize its error and return Lt. Macholl to his position in accordance with the Board's order." 

Hanks said the appeals board did not allow the corrections department to present evidence, including interviews or video recordings of the incident, to the board. She said the board relied on paper filings and an investigative report from the N.H. Attorney General’s Public Integrity Unit, which reviewed the corrections department’s videos and its investigative file of the incident.

The public integrity unit concluded there was insufficient evidence to show, under a probable cause standard, that Macholl “was outside the bounds of permissible force when he detained J.M. (the prisoner). Accordingly, this Office will take no further action and this matter is now closed,” wrote Senior Assistant Attorney General Dan Jimenez in a letter Dec. 22, 2023, to attorney Stacie Moeser of the N.H. Police Standards and Training Council.

The incident unfolds

The Granite State News Collaborative obtained videos of the incident from the corrections department. The videos have no sound. In them, the inmate’s face is obscured, and his identity is blacked out in the investigative report that the collaborative obtained from the Public Integrity Unit. He is not identified in any of the documents, including in the Personnel Appeals Board decision.

Jane Graham, strategic communications administrator for the N.H. Department of Corrections, said the agency checked with the attorney general’s office on requirements in the state’s right-to-know law, and got clearance on a privacy basis to withhold the prisoner’s identity and to blur his face.

According to the records obtained by the news collaborative, on April 27, 2023, the prisoner was involved in what the corrections department calls a “use of force incident” at the Northern New Hampshire Correctional Facility in Berlin. According to the corrections department, that morning Macholl arrived early to assist transport officers because he anticipated issues with a particular inmate. Three days earlier, the transport officers had attempted to take the same man to the New Hampshire State Prison in Concord, but he told them he was suicidal.

Macholl followed corrections department protocol that day, notifying medical personnel of the man’s suicidal ideations and waiting for them to make an assessment. The inmate was evaluated, determined not to be suicidal, and ordered to be transferred again to the Concord prison. 

He was being sent back to the prison because on April 10, 2023 — the day he arrived in Berlin — he beat up his cellmate, according to the investigative report. He was to be placed in the secured housing unit — what’s known as solitary confinement, or “the hole” — on his arrival at the Concord prison.

The morning of the second attempt to transport the man, the inmate again said he was suicidal, screaming it repeatedly. That time, Macholl did not notify medical staff. Instead, he told the man he would be evaluated in Concord, and with the help of two other correctional officers proceeded to drag the man, who passively resisted by going limp, from the cell, down a hallway and into the transport van.

Hanks said while the public integrity unit determined Macholl did not use an illegal chokehold under the law, it did not address or exonerate Macholl for violating the department’s internal use-of-force policy and procedure directives.

“It took three correctional officers to drag the resident down the hallway and forcibly place him in the transport van,” according to the appeal filed by Senior Assistant Attorney General Mary A. Triick.

Once in the van, which is not equipped with cameras, the man continued to say he was suicidal and began banging his head against the plexiglass divider, according to the documents.

According to a narrative of the incident, Macholl grabbed the man and applied a mandibular pressure point technique (applying pressure to a spot directly below the ear lobe) to the right side of the inmate’s head. Once he pulled the man out of the van, cameras recorded Macholl with his left arm around the area of the man’s throat while applying the mandibular pressure point to the right side of his head.

Macholl continued to apply the pressure to the inmate as he pulled him from the van and took him back to a cell. 

According to Commissioner Hanks, video shows Macholl lifting up the man, who is cuffed and shackled; at one point, his toes are not touching the ground.

When interviewed by Dan Hammer and Yail Balderrama, investigators with the Department of Corrections, the inmate described what happened from the time he was removed from the “tank” (the holding cell), taken to the transport van and then brought back.

While in the tank, the inmate said in the interview, he looked at the monitoring camera, put the “slice to my throat” and repeatedly screamed "I'm suicidal” while banging on the door. Eventually, Macholl and two other correctional officers came into the cell and cuffed him. Continuing to scream “I’m suicidal,” the inmate said, “Macholl starts dragging me down to the van.”

He said he was “really, really scared. I thought I was going to get my ass whooped at the car.”

Two inmates were already in the van when he reached it, he said. 

“They are dragging me to the van, and we are basically fighting,” the inmate told the investigators. “He dragged me, threw me on it, and I was like trying to pull my face out as he was trying to bump me up and he was trying grip me, and that's when he went underneath and started choking me, and I was screaming too when he choked me and he cut me off. Yo, I thought I was gonna die.”
The inmate told investigators that inside the van, Macholl “was choking me, I started blacking out, he was choking me. All of a sudden he let go and I breathed for air, and when I went down I breathed for air and I was like buckle, buckle, I unbuckled myself. I was like ‘Help! I'm suicidal, help!’ And he was like,’Oh, he unbuckled it,’ so that's when I started banging my head on the window, and it wasn't because I was screaming ‘suicidal’ that handlebar (the corrections officer who was the driver) said this, because he should of said this in the beginning, it’s because I believe that in all my heart he didn't want to die on the way over. He didn't want to mess up, turn the wheel back, get distracted, get into a car crash and die himself because he didn't care. At that point, he didn't care about the inmates in the car or me, He cared about his own life. Cuz that's when he said, ‘I can't transport.’ That's when Lt. Macholl rough-handled me, grabbed me out and started dragging me when I was in that road right there with no camera. He stuck something right here, in my neck, and it was bleeding a little bit.”

What the inmate described is the mandibular pressure point technique. A video of corrections department Capt. Scott Towers demonstrating the technique (Insert link to video demonstration) on a mannequin was made as part of the investigation and released to the Granite State News Collaborative. A photograph taken the day of the incident of the inmate’s neck and released by the Public Integrity Unit shows a mark underneath his right ear.

In his interview with investigators, the inmate said Macholl pressed some sort of object into his neck — not a finger. “It's not the first time I have had someone put something to my throat, do you know what I am saying? That was not a finger.” Macholl’s other hand, he told the investigators, was around his throat. 

The inmate said that he could breathe. After Macholl told him to walk, the inmate said, he began to shuffle a bit, and “it hurt, it hurt.” Hammer asked what it felt like. The inmate said, “A lot of pain and I could honestly feel the cut, feel like it went in and it felt like a lot of pain, a lot of pain.”

Macholl didn’t release the pressure until the inmate was back in the holding tank, according to the appeal.

The inmate said his voice was “croaky” afterward, but he didn’t know if that was because of the chokehold or because he had been screaming. 

“I was screaming, I might have lost my voice. I know it was hard for me to speak, and I tried to speak. It was hard for me to speak. I didn't have a lot of air in me. Could have been from me holding my breath, I don't know. On camera it might show that he was choking me. I really don't know, it happened like this (snaps fingers),” he said. 

The two inmates who also were in the van were interviewed as well. One said the lieutenant did not use a chokehold while the other said he used a “loose chokehold.” Both said Macholl did not use excessive force. Their names were not released.

Once the inmate was back in the holding cell, “it was only at this point, after force had been used to move the resident out of his cell and the resident had escalated from suicidal ideations to self-harming behavior, that Lt. Macholl notified medical personnel and called for backup officers to respond,” Senior Assistant AG Triick wrote in the appeal.

After he was put into the holding cell, someone brought in a camera to record what was happening. That should have been done when the incident first began, Commissioner Hanks said.

At that time of the incident, Hanks said, “unfortunately” corrections officers did not have body-worn cameras. Since July 2023, however, all of the state’s over 360 officers are fitted with a camera.

Macholl was fired for violations of multiple corrections department policies, including the use-of-force policy and the suicide prevention and intervention policy.

In its decision ordering reinstatement of Macholl, the Personnel Appeals Board said the Public Integrity Unit (PIU) noted in its report that Capt. Scott Towers, who is considered the most knowledgeable and qualified corrections department employee to analyze use-of-force incidents, was asked by Assistant Corrections Commissioner Paul D. Raymond Jr. for his expert opinion on the matter.

“Captain Towers was shown two out of four video angles of the incident and concluded that neither view supported a conclusion that Lt. Macholl had used inappropriate or excessive force. The Assistant Commissioner specifically told Captain Towers not to document his opinion on the matter. When he was interviewed by the PIU, Captain Towers was able to review two other video angles, which led him to state with even more conviction that Lt. Macholl did not use excessive force or an illegal chokehold,” according to the appeals board.

The appeals board concluded that “no reasonable factfinder would conclude that Lt. Macholl had used unlawful or excessive force to gain the inmates’ compliance. All the witnesses who were actually present, with the exception of the inmate on whom the pain compliance technique was used, agreed that Lt. Macholl had not used a chokehold or other excessive force.”

The board also said the video evidence was “deemed generally unreliable to reach the conclusions reached by the NHDOC to determine that Lt. Macholl had acted inappropriately.”

Hanks said board members never viewed the videos themselves but relied on the Public Integrity Unit’s report to reach its decision. In a statement, the Personnel Appeals Board said it “does not provide comment on cases” and couldn’t confirm or deny whether its members viewed the actual videos.

According to Graham, the strategic communications administrator, very few disputes from the corrections department wind up in front of the Personnel Appeals Board — normally one a year, at most. This year has been an exception: Two cases went through the appeals process.

These articles are being shared by partners in the Granite State News Collaborative. For more information, visit collaborativenh.org.