New Hampshire Supreme Court order, click here for 2014-0592, The State of New Hampshire v. Seth Mazzaglia

CONCORD – The state Supreme Court denied Seth Mazzaglia a new trial on Tuesday for the October 2012 rape and murder of University of New Hampshire student Lizzi Marriott in Dover, but that’s not likely the end of his appeals.

Mazzaglia argued unsuccessfully through his attorney Christopher Johnson that his first-degree murder conviction should be overturned because the judge excluded evidence at trial that Marriott had expressed to prior sexual partners an “interest in bondage-related sexual activities,” according to Tuesday’s ruling.

The appeal has made headlines for months as Marriott’s family and victim advocates fought to keep her sexual history private, although many personal details of her life emerged during the case and more, as well, in Tuesday’s Supreme Court ruling.

Mazzaglia, who is serving life without parole at the Northern New Hampshire Correctional Facility in Berlin, can still file a motion for a new trial in state court, and eventually a petition for a new trial in federal court if he chooses.

Prosecutors convinced a jury in Strafford County in 2014 that Mazzaglia attacked Marriott from behind while she watched a movie and strangled her with a rope after she refused to have sex with him and his then-girlfriend, then sexually assaulted Marriott after she died.

Then-girlfriend Kathryn McDonough testified she and Mazzaglia dumped Marriott’s body in the Piscataqua River off Peirce Island in Portsmouth. Marriott was 19 when McDonough, her co-worker at Target, lured her to Mazzaglia’s apartment. Marriott’s body has not been found.

McDonough, who was the star witness against Mazzaglia, was released from prison in July after serving three years for her role in the crime.

Mazzaglia’s lawyers contended that Marriott died during consensual sex with Mazzaglia and McDonough. Had the sex been consensual and her death accidental, Mazzaglia would have still faced criminal charges, but they would have been less serious and likely provided the opportunity for parole at some point, Johnson told the Supreme Court during oral arguments last month.

All five Supreme Court justices agreed with the trial judge that testimony alleging Marriott expressed interest in bondage-related sex activity to a prior sexual partner two and a half years earlier and more recently to her then-partner would have been irrelevant.

“… the trial court properly excluded the challenged evidence on the ground that it lacked probative value, or, in other words, was irrelevant to establish that the victim consented to engage in bondage-related sexual activities with the defendant and his girlfriend,” Supreme Court Chief Justice Linda Dalianis wrote.

The justices discounted Mazzaglia’s argument that “without the evidence alleging that the victim had previously expressed interest in bondage-related sexual activity, ‘any claims that (the victim) would consent’ to bondage-related activities with the defendant and his girlfriend ‘would seem objectively counterintuitive and implausible.”

Dalianis explained the defense claims: “According to that (defense) theory, the victim allowed the defendant and his girlfriend to put a ‘harness’ around her and then had consensual sexual intercourse with the defendant, while his girlfriend accidently smothered her.”

Dalianis noted that the theory was based on the story McDonough told the defense team shortly after Marriott’s murder.

At trial, Judge Steven Houran kept the evidence from the jury and sealed the records based on Rule 412 of the New Hampshire Rules of Evidence, which deals with the admissibility of evidence of a victim’s sexual history.

Mazzaglia argued the rule didn’t apply because the evidence he was seeking to admit only involved alleged statements of interest, not specific instances of the victim’s alleged sexual conduct, Tuesday’s ruling stated.

“… the propensity evidence in this case is not relevant to establish that the encounter between the victim, the defendant, and his girlfriend was consensual.  As we explained in Higgins (a prior, unrelated case), “[c]onsent to sexual conduct with one person in no way implies consent to such activity with another,” Dalianis wrote.

“Similarly, the fact that the victim allegedly previously expressed to prior partners an interest in bondage related sexual activity does not make it more probable that she consented to her encounter with the defendant and his girlfriend,” Dalianis wrote.

The order explained that under Rule 412, “inquiry into the prior consensual activities of victims is generally prohibited,” but that “[i]n certain instances, . . . protection of the victim and her privacy rights must yield to a defendant’s right to due process and to confront accusers.”

The Supreme Court on Tuesday also dismissed Mazzaglia’s argument that prosecutors “opened the door” to admitting such evidence by indicating Marriott was not the kind of person who would consent to bondage-related practices.

The Supreme Court ruled: “…we conclude that the trial court did not unsustainably exercise its discretion when it ruled that the State did not, on those occasions, open the door to admission of the evidence at issue,” Dalianis wrote.

Reaction

Mazzaglia’s appeal caused a firestorm of protest when the Supreme Court ruled that sealed portions of trial testimony behind closed doors would be public during the appeal process.

Marriott’s family, the New Hampshire Coalition Against Domestic and Sexual Violence successfully argued the records should remain sealed.

The Supreme Court reversed its decision and ordered attorneys for Mazzaglia and the state to avoid mentioning details of Marriott’s sexual history contained in the sealed records when they publicly argued the case in November.

After the ruling Tuesday, Marriott’s father, Robert Marriott, released a statement on the website of the New Hampshire Coalition Against Domestic and Sexual Violence.

“We are relieved that the Supreme Court has denied the appeal of Seth Mazzaglia. We remain devastated over the loss of our daughter Lizzi and wish that we could see where she would be today had she not been murdered.

“For over four years we have had to travel down a path we did not choose and did not want to be on.  We know that we will be reminded of Lizzi’s loss every day for the rest of our lives, but we hope that we will be able to begin to move on now that this chapter in our lives has come to a close,” Mr. Marriott wrote.

Amanda Grady Sexton, public policy director of the coalition, stated, “Today the dignity and privacy of Lizzi Marriott has been protected, and justice has been served. Rape victims can now come forward with the peace of mind that the court will focus its attention on the crimes of the rapist, not on irrelevant information about them.”

Also on Tuesday, Attorney Johnson, who represented Mazzaglia, said: “I respect the Court’s decision, but am disappointed that the Court did not agree with the arguments we made. I continue to believe that those arguments were sound.”

Senior Assistant Attorney General Peter Hinckley said: “We are obviously pleased with the Supreme Court’s decision today affirming Mazzaglia’s conviction, it represents a significant victory for the privacy rights of victims of sexual assaults.”