More than sixteen years after a fire killed 74-year-old disabled veteran Robert McMillan, prosecutors and defense attorneys told a new set of jurors to carefully judge the credibility of witnesses and weigh forensic fire evidence for themselves to determine whether Richard Ellison set the fatal blaze.
The long-delayed case – first put off by the pandemic, and then by a deadlocked jury and mistrial in September – is now in the hands of the second jury to hear the evidence. There is one key difference from the original trial: one of the central witnesses in the case, Ellison’s ex-girlfriend Robin Theriault, died before jurors could hear from her directly.
Before hearing the last words from the defense and the prosecution Wednesday, Judge John Kissinger told the jurors in Merrimack Superior Court that they would have an additional exhibit to consider, a transcript of Theriault’s interview with police in December 2006, to help them evaluate the audio recordings of her trial testimony.
Ellison, 49, faces charges of second and first-degree murder. On May 25, jurors began to deliberate on whether to find Ellison guilty of setting the fire that killed McMillan on Dec. 9, 2005 at the duplex where he lived at 282-284 N. State St. in Concord.
McMillan died at Massachusetts General Hospital from injuries sustained in the fire, including burns that covered 40% of his body. He was bedridden after a stroke, and his live-in caretaker Stephen Carter had left the house that evening to find enough money to buy drugs.
Prosecutors said Carter cared deeply about McMillan and that he stood to inherit the house Ellison is accused of burning down, but the defense said Carter’s addiction gave him a “Jekyll and Hyde” personality and said that his car was spotted pulling away from the house just before smoke was reported.
The two sides differed on whether video surveillance footage and a prison corporal’s report indicated that a car resembling Theriault’s, borrowed by Ellison, drove away from the house just before the fire – or whether a car matching Carter’s was seen coming from the scene.
Ellison had spent the summer of 2005 living in Carter’s side of the duplex across from the New Hampshire Men’s State Prison along with his then-girlfriend Robin Theriault, before Carter asked them to leave. The two men met while working on a roofing job. At the time of McMillan’s death in December, the couple was staying with Theriault’s sister.
During the six-week trial that began in April, jurors heard from more than 40 witnesses, including fire investigation specialists, forensic video experts and individuals who claimed Ellison later confessed to the murder.
A previous trial in the case ended in a mistrial this fall, after multiple days of deadlock and the departure of jurors. The current jury heard audio recordings of testimony from Theriault, but never saw her take the stand. Theriault died in October from complications related to COVID-19, according to her obituary.
The case had remained cold for years, until Ellison was arrested in 2018.
Senior Assistant Attorney General Susan G. Morrell showed the jury pictures of the blackened house and argued in her closing statement that the blaze had been intentionally set with a trail of gasoline from an open container found with a houseplant melted into it.
“Based on this evidence, there’s no reasonable doubt that this was a fire that was intentionally set, caused by the presence of gasoline and ignited with an open flame,” she said. ‘The defendant left a trail of evidence linking himself to this crime, a trail just like the trail of flames in Carter’s residence.”
While Theriault’s testimony was central to the state’s case, as shown in an infographic with her name in the center, Morrell said that other witnesses and physical evidence backed up details she told police about the crime. “The police investigated her statements for years in a variety of ways, with other witness statements and collecting evidence that they’ve learned about along the way,” Morrell said.
Prosecutors said that Ellison was enraged at Carter for kicking him out of the house and not paying him money that he was owed.
In the defense’s closing argument, Public Defender Jeremy Clemans said that Ellison had not been at the duplex that night. Clemans argued that Ellison had not maintained a grudge or even been particularly upset when Carter kicked him out months prior to the fire. “There were no harsh words, no animosity, there was zero motive for him to commit what he’s accused of,” he said.
The defense said the fire could have been set accidentally with gasoline left in the home and that Carter’s involvement had not been definitively ruled out.
Clemans also suggested that police had made threats and promises to Theriault and other witnesses to convince them to point fingers at Ellison. He questioned why prosecutors didn’t call as a witness Concord Detective Sean Ford, the lead detective on the case who Clemans said threatened Theriault during an interview in January 2006.
“That should raise a serious question in your mind about the investigation into Mr. McMillan’s death and, more broadly, about the state’s case,” Clemans said.