By NANCY WEST, InDepthNH.org

CONCORD – Indicted state Supreme Court Justice Anna Barbara Hantz Marconi’s lawyer argued Monday that Attorney General John Formella should have never been involved in her case because he has a conflict representing Gov. Chris Sununu both before and after he was elected governor and served on his transition team.

Attorney Richard Guerriero argued before Judge Martin Honigberg that as a result of this close relationship, Formella and his office should now be disqualified from the case and all indictments against Hantz Marconi should be dismissed because Sununu is the chief complaining witness in the matter.

The indictments involve an alleged conversation Hantz Marconi had in June with Sununu in his office about Formella’s investigation into her husband, Geno Marconi, and a separate conversation she allegedly had with Pease Development Authority chairman Steve Duprey.

“Gov. Sununu is the key witness in this case,” Guerriero said. Sununu is both the most important witness to this alleged conversation that’s described in the indictment, and he is the person who as an official was allegedly improperly influenced, Guerriero said.

“The problem with that is that Attorney General Formella has two clients in this situation and conflicting responsibilities,” he said.

Representing Gov. Sununu, Formella has duties of loyalty, confidentiality and other duties to that client.

“And he has duties as a prosecutor to be impartial and to represent the people of New Hampshire and the case law is really clear a prosecutor in that situation cannot serve two masters,” Guerriero told the judge.

At the hearing in Merrimack County Superior Court in Concord, Hantz Marconi, who is on paid leave from the court, entered a not guilty plea, waived arraignment and was released on personal recognizance bail. Guerriero said this matter could have been avoided because during the grand jury investigation into Hantz Marconi before she was indicted, he told prosecutors then that he believed Formella had a conflict of interest.

“But they plowed ahead,” Guerriero said. Instead, they should have hired an outside prosecutor to avoid any conflict, he said.

Hantz Marconi is charged with meeting with Sununu in his office to discuss the criminal investigation into her husband Geno Marconi, the longtime director of the Division of Ports and Harbors, which is part of the Pease Development Authority, and other related charges.

Guerriero has said in prior motions that Hantz Marconi cleared the meeting first with state Supreme Court Chief Justice Gordon MacDonald.

Indictments against Geno Marconi, 73, who was placed on paid leave in April, were announced the day after Hantz Marconi’s Oct. 17. The indictments are related to the criminal investigation.  He pleaded not guilty last week in Rockingham Superior Court to witness tampering and destroying evidence and also was released on personal recognizance bail.

“The prosecutor is supposed to be impartial and do justice and present a case fairly and how can they do that when the key witness in the case is their client,” Guerriero said.

Assistant Attorney General Joe Fincham said it is not unique for an Attorney General to serve as the governor’s legal counsel.

Former Attorneys General Michael Delaney and Kelly Ayotte both served as governor’s legal counsel before becoming attorney general, Fincham said.

“This is not a unique situation,” he said. The Attorney General’s Office represents all state agencies civilly and said all prosecutions are derivative of the attorney general, including the work of county attorneys.

“We stand here only based on his (Formella’s) authority to prosecute,” Fincham said of himself and Assistant Attorney General Dan Jimenez.

“What the defense is asking for in this case is immunity,” Fincham told the judge. If one of the state employees represented civilly by the Attorney General’s Office commits a crime, he or she would be immune because the Attorney General also represents the governor, he said.

“There is no mechanism for an outside prosecutor outside the authority of the Attorney General,” Fincham said.

Fincham said Sununu has no personal interest in the case. He was “approached by the defendant asking for special treatment in a criminal prosecution,” Fincham said.

 Alleging Formella has a personal interest in the case would be accusing him and the Assistant Attorneys General of committing a crime, Fincham said.

“The idea that we did not take this seriously and committed a crime is offensive,” Fincham said.

“…(O)ur job is seeing justice is done on every case, nothing else,” Fincham said.

Guerriero responded pointing to the way Fincham phrased Hantz Marconi’s alleged crime when he said she sought “special treatment.”

“Look at the words in the indictment. Those words are not in the indictment. If there had been a request for quote unquote ‘special treatment’ they would have put those words in the indictment or equivalent words.

“The indictment says that she said (to Sununu) the investigation into her husband was baseless and it was causing her to be recused from many cases at the Supreme Court,” Guerriero said.

Sununu nominated Hantz Marconi to the state Supreme Court in 2017 and she was confirmed by the Executive Council.

A friend of Geno Marconi, Bradley Cook, who formerly owned Atlantic Fishing and Whale Watching in Rye, spoke out months ago in support of the Marconis. Cook of Hampton was later indicted for perjury.

Before his indictment Cook told InDepthNH.org that he believed Sununu was behind an effort to get rid of Geno Marconi because Marconi didn’t agree with the state’s plan to build a controversial elevated strip mall in the Rye Harbor parking lot, a plan that has since been stopped.

Geno Marconi was indicted for allegedly falsifying physical evidence by deleting a voicemail/and or voicemails from a phone on April 22. He was also indicted for retaliating against Neil Levesque by providing confidential motor vehicle records pertaining to Levesque to Bradley Cook, in violation of the Driver Privacy Act. After Geno Marconi’s hearing last week, Jimenez declined to explain more about the motor vehicle record except to say more information about it would be coming out at upcoming hearings.

Levesque is the vice chairman of the Pease Development Authority and is the director of the New Hampshire Institute of Politics at Saint Anselm College.

Bradley Cook, who was until recently the chairman of the Division of Ports and Harbors Advisory Council, waived his arraignment last week. Cook was indicted for perjury for allegedly making a false statement to the grand jury by saying he did not communicate with/and or receive materials from Geno Marconi relating to Neil Levesque’s pier permit.

Read InDepthNH.org’s previous reporting on the indictments against Geno Marconi, Justice Anna Barbara Hantz Marconi and Bradley Cook here: https://indepthnh.org/?s=Hantz+Marconi