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  • Staff Photo by COREY PERRINE^^Steven Levesque, center, attorney to Michael Gorsuch, center left, delivers closing remarks Tuesday, June 30 at the Department of Safety in Concord. In the fall of 2007 Gorsuch was involved in an auto accident that killed his friend Dan Rodriguez. Gorsuch said he was not the driver and is battling the state to retain his driving privlidges.

    CQ NAMES. BRINDLEY COPY.
  • Courtesy photo^^(From left) Frank Garvis, Steve Gayne, Dan Rodriguez, and Mike Gorsuch.
Friday, December 10, 2010

Fatal crash passenger sues police for prosecution

CONCORD - A Temple man charges Nashua police wrongly and maliciously prosecuted him for the death of his friend in a 2007 car crash.

Michael Gorsuch, 32, of 28-2 Derbyshire Lane, Temple, filed claims of civil rights violations Oct. 28 in U.S. District Court against the city, Police Chief Donald Conley, four officers and two state troopers.

Gorsuch seeks compensation for his legal expenses, violation of his constitutional rights, emotional distress and punitive damages, though his suit doesn’t specify a sum.

Gorsuch’s lawyer, Richard Lehmann of Concord, declined to comment Thursday. Lehmann also represents another Nashua man, Kevin Whittaker, accused in another negligent homicide case.

Nashua Police have yet to respond to the suit, and the department’s lawyer, Brian Cullen of Nashua, could not be reached for comment Thursday.

Daniel Rodriguez, 27, of Nashua, was killed when his Scion tC spun into the trees off Thornton Road on Oct. 29, 2007. Police accused Gorsuch, a passenger in the car, of having been driving, and arrested him shortly afterward. The two friends had been drinking at the Sky Lounge, watching the Red Sox clinch the World Series, and neither was wearing a seatbelt.

Gorsuch’s lawsuit alleges that police arrested and prosecuted him “based on trumped-up charges and fabricated evidence, for a crime that he did not commit.”

Prosecutors dropped the negligent homicide charge after two other accident reconstruction experts concluded police were mistaken in their analysis of the crash, and that Rodriguez had been driving.

State police continued to pursue the case before the Department of Safety, however, where a hearings examiner revoked Gorsuch’s license for seven years. The examiner reversed himself last year, after a Hillsborough County Superior Court judge ordered a new hearing, and yet another expert testified in Gorsuch’s favor.

In addition to the chief, Gorsuch’s lawsuit names Nashua Police Lt. John Fisher, Sgt. James Malony, Sgt. Jeffrey Maher, and retired Sgt. Thomas MacLeod, charging that they conspired to obfuscate the evidence, and also names state police Troopers Charlene Bowman and Mark Nash, who prosecuted Gorsuch before the Department of Safety’s Bureau of Hearings.

Police suspected Gorsuch because Rodriguez’ body was found wedged behind the driver’s seat, and Gorsuch had been able to climb out of the car with only minor injuries, police reports suggest.

“I immediately felt it did not make sense that Rodriguez would end up in this position if he was the driver,” Maloney reported at the time, adding later, “In addition, it did not make sense that the passenger in a vehicle with major right-side damage had no serious injuries while the driver was killed.”

Gorsuch and his lawyers charge that Maloney and other police accident reconstruction investigators ignored other evidence that pointed to his innocence, such as Rodriguez’ shoe found near the gas and brake pedals, and Gorsuch’s Red Sox cap, found pinned within the front passenger side airbag.

Gorsuch charges that police conducted a crash reconstruction analysis “that disregarded science in favor of advancing the theory that Gorsuch was the driver.”

“The report was short on science, long on opinion, and intended to convey the sense that it contained conclusions arrived at by dispassionate scientific analysis. The collision reconstruction team... thus dutifully created a report asserting that Gorsuch was the driver of the car at the time of the accident, and dressed it up in the language of science,” his suit states.

Gorsuch repeatedly denied having been the driver, both at the scene and during lengthy questioning at the station. His suit charges that MacLeod illegally continued to question him after Gorsuch asserted his right to consult a lawyer, and misrepresented a statement Gorsuch made, turning the word “didn’t” into the word “did.”

Hillsborough County prosecutors disclosed Maloney and Fisher’s accident reconstruction report only after Gorsuch and his lawyer produced one of their own, conducted by Charles Schack, of Crash Experts in Manchester. Schack concluded that Gorsuch had been a passenger, and that Rodriguez had been driving. Prosecutors dropped the charge after consulting another independent expert, who agreed with Schack.

Yet another accident reconstruction expert, Bruce McNally of Rochester, also weighed in on the case in Gorsuch’s favor. Nonetheless, state police then prosecuted Gorsuch before the Bureau of Hearings, resulting in the temporary loss of his driver’s license. Gorsuch’s suit argues that Nashua Police pressed for the administrative prosecution - a claim Department of Safety officials have denied.

“Despite the fact that three technical accident reconstruction experts, each

of whom was properly trained to conduct passenger kinematics analysis, all had

concluded that Rodriguez was the driver and Gorsuch was the passenger, Fisher,

Maloney and the Nashua Police Department procured the institution of further legal

process in an attempt to ‘get’ Mr. Gorsuch,” his lawsuit states. “Specifically, they prevailed upon New Hampshire State Trooper Carleen Bowman and Trooper Mark Nash to prosecute Gorsuch in an administrative hearing designed to take away Gorsuch’s right to drive in New Hampshire. Like the criminal prosecution that preceded it, this bad faith attempt to ‘get’ Mr. Gorsuch failed.”

Andrew Wolfe can be reached at 594-6410 or awolfe@nashuatelegraph.com.

Some of the Telegraph’s previous stories on Michael Gorsuch can be found in the Special Reports section of this Web site. Many of the articles were lost in the switch to a new publication system, however, and are available only through the news archive.