By NANCY WEST, InDepthNH.org
CONCORD – Indicted state Supreme Court Justice Anna Barbara Hantz Marconi’s lawyer filed a motion late Thursday afternoon seeking to disqualify Attorney General John Formella and all of the lawyers in his office from her case due to “conflicts” and to dismiss all indictments against her.
Richard Guerriero, Hantz’ Marconi’s lawyer, filed the motion accusing Formella of violating the Rules of Professional Conduct by representing Gov. Chris Sununu, “the star witness” in the case against Hantz Marconi, and acting as the state’s chief prosecutor in her criminal case at the same time.
Formella owes a lot to the governor, having worked as an attorney for Sununu and his businesses, worked on Sununu’s political campaigns and has said himself he has a lawyer-client relationship with Sununu, Guerriero said.
“By all accounts including his own Attorney General Formella is and has been for years Gov. Chris Sununu’s lawyer,” Guerriero wrote. At the same time, in the role of public prosecutor representing the people of the state of New Hampshire, Formella has brought criminal charges against Hantz Marconi, a conflict of interest, he said.
“Formella cannot be an impartial and fair prosecutor in these circumstances,” Guerriero said.
“When a prosecutor in a criminal case represents a key witness in other matters the prosecutor has a conflict of interest. He cannot prosecute the criminal case on behalf of the People of the state because he is limited by his duties of loyalty and confidentiality, to his client – the witness.”
And when the prosecutor is the chief prosecutor in an office with mandated duties to direct and supervise his subordinate attorneys, the entire office must be disqualified, he wrote.
“Every accused person has a constitutional right to a prosecutor who evaluates allegations fairly and impartially and only files charges which are justified. When prosecutors act in spite of conflicting loyalties, they do a disservice to the people and violate the rights of the accused,” Guerriero wrote, “especially when they are taking actions as consequential as indicting a sitting supreme court justice.”
Formella and his subordinate attorneys should not have been handling this matter before the grand jury and should not be prosecuting it now, Guerriero said. “The Attorney General’s Office should be disqualified and all of the indictments dismissed,” he wrote.
Before Sununu nominated Formella to be Attorney General, Formella worked as a private attorney handling legal matters for the governor and his family.
“Furthermore the Attorney General worked on the governor’s political campaign, served on his transition team and then went on to serve as Sununu’s legal counsel,” he said.
On Thursday morning the Superior Court judges filling in for the recused Supreme Court granted Hantz Marconi’s assent-to motion to suspend her license to practice law in New Hampshire until the matter is resolved. See story here: https://indepthnh.org/2024/10/31/indicted-nh-supreme-court-justice-hantz-marconi-suspended-from-practice-of-law/
On March 3, 2021 Sununu nominated Formella for the position of Attorney General and on March 24 2021, the governor and Executive Council confirmed Formella.
As Attorney General, Formella is the chief prosecutor of the state of New Hampshire and he is directly responsible for the prosecution of all criminal cases and represents Sununu in civil cases as well.
“In summary the attorney general claims that justice Hantz Marconi committed crimes by meeting with Gov. Sununu expressing her opinion that an attorney general investigation of her husband (Geno Marconi) was baseless, and telling the governor that the investigation was causing her recusal from many cases at the Supreme Court.
“The Attorney General alleges that Justice Hantz Marconi attempted to commit and solicited commission of the crime of improper influence by telling Gov. Chris Sununu that an investigation into Geno Marconi was the result of personal, petty and or political biases, that there was no merit to the allegations against or subsequent investigation into Geno Marconi and or that the investigation into Geno Marconi needed to wrap up quickly because she was recused from important cases” pending before the New Hampshire Supreme Court, Guerriero wrote.
The Attorney General claims that Justice Hantz Marconi committed the crime of solicitation or misuse of position by allegedly “soliciting Pease Development Authority chairperson Steve Duprey to secure a governmental privilege by allegedly soliciting Duprey to secure a governmental privilege and advantage to her to which she was not otherwise entitled regarding the employment of or an investigation into” her husband.
“Without a doubt, Governor Sununu is the single most important witness for Attorney General Formella regarding these charges,” Guerriero said.
“Gov. Sununu is identified by name in the lead felony indictment. Moreover Formella’s case is based upon the meeting and conversation between his client Gov. Chris Sununu and Justice Hantz Marconi. Obviously an accused person has a right to confront her accusers.
“There is simply no reasonable argument that Sununu is not a witness in this case,” Guerriero said.
Formella doesn’t claim there was a secret back room after hours meeting with Hantz Marconi and Sununu.
“The Attorney General could not make such an allegation. Justice Hantz Marconi told the Chief Justice (MacDonald) that she intended to meet with the governor and told others afterward that she had done so,” Guerriero said.
Hantz Marconi scheduled the meeting June 6 through the governor’s staff and was given an appointment on the governor’s official calendar.
“She met with Sununu in his office with his legal counsel Rudolph “Rudy” Ogden present during regular business hours. The meeting was open and documented in multiple ways – not exactly the usual route to corruption,” Guerriero said.
He said Hantz Marconi will show in forthcoming motions that every one of the indictments fails to state a crime, but “the case should never reach that point because Formella and his office should never have been handling the matter.”
Formella has conflicts of interest under the Rules of Professional Conduct that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest, he said.
“Formella cannot serve two clients at the same time. He cannot fulfill his duties of loyalty and confidentiality to his client the governor and at the same time fulfill his duties to be an impartial and fair prosecutor in a criminal case,” Guerriero wrote.
Beyond the duties Formella owes to Sununu due to their attorney-client relationship, he also has a conflict under “personal interests.”
After the indictments were announced, Sununu told WMUR that “he really appreciates the attorney general” and “that he’s done a phenomenal job.”
“To say the least, Formella’s career and success have been tied to his support of Sununu,” Guerriero said.
Considering the one-sided nature of the grand jury proceeding, the prosecution’s control of the process and a defendant’s right to a conflict-free prosecutor there is unfair prejudice in this case warranting dismissal, Guerriero said.
Sununu declined to answer any questions Wednesday related to the June 6 meeting he had with Hantz Marconi citing the pending court case and said he was not even sure if he would be called to testify in any trial.
Formella’s spokesman Mike Garrity said Thursday: “We will respond as appropriate in court.”
Hantz Marconi was placed on administrative leave by the Court on July 25.
On Oct. 16, Attorney General Formella announced indictments against Hantz Marconi relative to that conversation with Sununu and another she allegedly had with Steve Duprey, Sununu’s appointee as chairman of the Pease Development Authority.
Her husband Geno Marconi, the suspended director of the Division of Ports and Harbors, was indicted for tampering with witnesses and informants by purposely retaliating against a witness or informant by allegedly providing confidential motor vehicle records pertaining to N.L. to another individual B.C. April 4 in violation of the Driver Privacy Act.
N.L. is believed to be Neil Levesque, the vice chairman of the Pease Development Authority. And B.C. is believed to be Bradley Cook, a longtime friend of Geno Marconi’s who has spoken publicly in his favor.
Geno Marconi was also indicted for allegedly falsifying physical evidence by altering, destroying concealing or removing something to hinder an investigation by deleting a voicemail/and or voicemails from a phone on April 22.
Bradley Cook of Hampton, the chairman of the Division of Ports and Harbors Advisory Council, was indicted for perjury and false swearing. The felony charge alleges Cook made a false material statement while testifying before a grand jury Sept. 4 that he did not communicate with/and or receive materials from Geno Marconi relating to the pier permit of N.L.
Hantz Marconi is scheduled to be arraigned in Merrimack County Superior Court Nov. 21 and Geno Marconi and Bradley Cook are set to be arraigned Nov. 27 in Rockingham County Superior Court.
