A jury should never have convicted Richard Ellison of second-degree murder because he was unable to mount a full defense due to court errors during his trial, his lawyer told the New Hampshire Supreme Court. 

Ellison was convicted of starting a house fire on North State Street in Concord in 2005 that killed 84-year-old Robert McMillian, who was disabled and in a wheelchair.

McMillan’s death was considered a cold case for years before Ellison was charged with first and second-degree murder in 2018 by a Merrimack County grand jury. His trial in 2021 ended without a conviction, and during a second trial in 2022, he was convicted of second-degree murder and acquitted of first-degree murder. 

Ellison is serving a 40-year-to-life sentence in the state prison for men, directly across from the North State Street home where McMillan lived.

On Wednesday, Ellison’s appeal went before the state supreme court, where he argued, among other things, that his defense wasn’t allowed to fully cross-examine a key witness, Matthew York, in the case. 

York testified in the first trial, often citing that he struggled to remember the information due to an extreme beating he received in prison in 2013. Nonetheless, he spoke about a conversation he had with Ellison while both of them were incarcerated at Coos County Jail,  where he said that Ellison told him that he and his girlfriend burned down the house across the street from the prison, in Concord, and someone died. 

At the second trial, York claimed that he remembered nothing. The court allowed prosecutors to use York’s audio-recorded testimony from the first trial instead of permitting a typical cross-examination.

“The defense can't control what answers our witness will give, but the point of this is the defense was trying to foster an indelible impression that York was not worthy of belief,” said Christopher Johnson, Ellison’s lawyer, at the opening arguments on Wednesday morning. “And to do that, they needed the jury to see him as well as hear him.” 

Johnson argued that “to get the full value” of a cross-examination, the visual component must be present. The decision to allow the video testimony affected the jurors’ deliberations because they couldn’t get a good impression of York, he claimed. 

One of the three presiding justices was skeptical of this argument. 

“But what you're entitled to constitutionally is an opportunity of cross-examination, which the trial court gave you,” said Judge Gillian Abramson, who sat in on the case as Chief Justice Gordon MacDonald recused himself because he previously served as the state’s attorney general. “It's not to create an indelible impression of cross-examination. That's not the standard.”

The grounds for Ellison’s appeal stood on two more key points, including that the judge should not have allowed a specific expert opinion from a forensic video analyst, Grant Fredericks. The defense argued that the expert’s conclusion about the content of blurry photos, meant to identify the car used by Ellison, was an opinion that sidetracked the jurors.  

Prosecutors defended the witness. 

“The expert never took the decision about whether that was the car, the same car, from the jury,” said Elizabeth Woodcock, an assistant attorney general. “He never said, ‘I know that this is the same car.’ He said that they were similar and he explained why he had reached that conclusion.” 

The third point of the appeal was that the prosecution failed to disclose materials that could have helped the case. The defense ran out of time to discuss this point in its 15-minute opening argument. 

The Supreme Court did not issue a ruling on Wednesday, and its verdict is expected to come out in the coming weeks.

Yaa Bame can be reached at ybame@cmonitor.com