By NANCY WEST, InDepthNH.org
CONCORD – The state Attorney General’s Office filed its list of witnesses to testify at state Supreme Court Justice Anna Barbara Hantz Marconi’s criminal trial that includes a cast of New Hampshire luminaries, not counting Attorney General John Formella himself who the defense wants to testify.
Hantz Marconi, 69, of Stratham, is accused of trying to interfere with a criminal investigation into her husband state Ports Director Geno Marconi, 73, when she spoke with then-Gov. Chris Sununu in June of 2024 and Pease Development Authority Chairman Stephen Duprey in April of 2024. Sununu and Duprey have both told investigators that Hantz Marconi did nothing illegal during their conversations.
On Thursday Duprey and Sununu both turned up on the Attorney General’s Office’s just filed witness list. Also on the prosecution’s list are Superior Court Judge Rudolph W. Ogden, III, who was Sununu’s legal counsel when he met with Hantz Marconi, and state Supreme Court Chief Justice Gordon J. MacDonald.
The defense has served subpoenas to testify on the other three Supreme Court justices, James Bassett, Melissa Countway, and Patrick Donovan.
There’s enough new legal wrangling in a flurry of recent court filings that a motions hearing will be held Aug. 8 before Judge Martin Honigberg in Merrimack County Superior Court at 1 p.m. Hantz Marconi’s trial is scheduled for Sept. 2.
The Attorney General’s Office filed a motion to quash the defense subpoena for Attorney General Formella to testify.
Assistant Attorney General Joe Fincham argued Formella’s potential testimony is not necessary, as it would not be relevant, material, and unobtainable elsewhere.
“First, regarding the ‘origins of the investigation,’ AG Formella would only be allowed to state that he spoke with Sununu and Ogden before they were interviewed by investigators for the State, which is available through the testimony of Sununu and Ogden,” Fincham wrote.
Formella would not be allowed to testify to the substance of his conversations with Sununu and Ogden and would not be allowed to testify to impeach Chief Justice MacDonald regarding the substance of MacDonald’s conversation with Sununu, Fincham wrote.
Fincham also said the defense misrepresented the Public Integrity Unit policy so Formella’s testimony about the general policy would be unnecessary.
Hantz Marconi’s lawyer Richard Guerriero wants Formella and his whole office disqualified from the case and the indictments against her dismissed because Formella was the first one to interview Sununu and Ogden, and didn’t follow his own protocols against investigating an official without a written complaint when there was no such complaint.
He argues in motions that Formella is the only person who knows how the Hantz Marconi criminal investigation started, and that Formella had conflicts that prejudiced Hantz Marconi from the beginning.
“The totality of the discovery provided by the State since Dec. 18, 2024, reveals new conflicts of interest and direct evidence of prejudice to Justice Hantz Marconi,” Guerriero wrote.
It shows Formella will be a necessary witness at trial because he was the first person to interview Sununu and legal counsel Ogden about the Hantz Marconi meeting “which is at the heart of this case. Formella made himself a trial witness when he conducted those interviews alone with no investigator as a witness, despite standard practices in his office and ABA guidance to the contrary,” Guerriero wrote.
Hantz Marconi told Sununu the investigation into her husband was “the result of personal, petty and or political biases, that there was no merit to allegations against or subsequent investigation into Geno Marconi,” according to court records. She also told Sununu the investigation needed to wrap up quickly because it caused her to be recused from hearing important cases at the state Supreme Court.
Hantz Marconi also said Chief Justice MacDonald approved of her meeting with Sununu beforehand, which MacDonald denied when he was interviewed by investigators.
Hantz Marconi is charged with Attempt to Commit Improper Influence, Criminal Solicitation (Improper Influence), Official Oppression, Criminal Solicitation (Official Oppression), Obstructing Government Administration, and two counts of Criminal Solicitation (Misuse of Position), all based on her conversations with Sununu and Duprey.
Also on the Attorney General’s witness list filed Thursday are Stephen P. Johnson, Thomas A. Defosses, and Robert J. Sullivan, all of the state Department of Justice, Hawley L. Rae of State Police, Paul Brean, Executive Director-Pease Development Authority, Madison E. Trites of the New Hampshire Insurance Department, and Margaret F. Lamson, who formerly served on the PDA board.
Erin Creegan, the attorney for the New Hampshire Judicial Branch, has filed a motion to clarify the subpoenas to the five judges.
Creegan asked the judge to ask the parties to submit information or argument on any testimony they will be seeking from the judges who have been subpoenaed.
“Upon hearing that information or argument, make a determination as to whether and about what any judicial officer may testify as a matter of law, or whether the subpoenas must be quashed as a matter of law,” Creegan wrote.
Assistant Attorney General Fincham filed a motion July 25 seeking to limit what Sununu, Ogden, Duprey and MacDonald could testify about.
During the pretrial litigation, Hantz Marconi has relied on the opinions regarding whether she acted with the requisite mens rea or state of mind during the events in question, legal opinions, and speculations from them, Fincham wrote.
Fincham’s motion quoted from defense filings regarding what they told investigators or others.
“[Sununu] said, ‘I didn’t think there was anything illegal about it.’ Likewise, [Ogden said,] “[i]t was never anything like that.”); (“[Sununu] summed up his overall impression by saying that, ‘I don’t think there was anything illegal about it.’”); “[Sununu] did not think there was anything unlawful about the conversation. He clearly did not think [Defendant] was attempting to influence any action on his part.”); (“Time and again, Duprey told investigators that [Defendant] did not try to interfere in the investigation or gain access to information unlawfully.”); (“Moreover, both Duprey and Governor Sununu told investigators they didn’t believe [Defendant] thought they had any influence over the investigation into her husband.”); Justice Gordon MacDonald (“One of the key facts demonstrating that the meeting was lawful and proper is” Defendant’s conversation with Chief Justice MacDonald and Chief Justice MacDonald’s purported opinion during that conversation.)
“While such inadmissible evidence may be gathered during a criminal investigation and disclosed to Defendant during discovery, it may not be admitted during trial,” Fincham wrote.
“Accordingly, the State seeks to preclude Defendant from soliciting, offering, or otherwise seeking to introduce testimony from these four (and any other) witnesses regarding: (1) their opinion about Defendant’s intent, including whether Defendant acted with the requisite mens rea for any of the charges; (2) their legal opinions, including about whether Defendant committed or was about to commit a crime or any element of a crime; and (3) their speculations about what Defendant knew or thought, or any other speculation relating to Defendant’s knowledge or intent,” Fincham wrote.
Those witnesses may describe their observations and recount the portions of their conversations with Hantz Marconi that are admissible under the rules of evidence, he said.
“However, it is for the jury to draw any conclusions about Defendant’s intent or knowledge, and
the opinion of lay witnesses about these matters ‘is superfluous in the sense that it will be of no
assistance to the jury’ and is inadmissible as a matter of law,” Fincham wrote.
Fincham argued that If Honigberg were to find Formella is a necessary witness with a conflict of interest, the appropriate remedy would be for the Deputy Attorney General to handle the case.
Geno Marconi, of Stratham, was indicted for allegedly falsifying physical evidence by deleting a voicemail/and or voicemails from a phone on April 22, 2024. He was also indicted for allegedly retaliating against PDA Board Vice Chairman Neil Levesque, who is also the director of the New Hampshire Institute of Politics at Saint Anselm College, by providing confidential motor vehicle records pertaining to Levesque to Bradley Cook, in violation of the Driver Privacy Act. Geno Marconi’s trial is scheduled for Nov. 2.
Geno Marconi and his wife Justice Hantz Marconi are both on paid leave from their respective positions.
Geno Marconi’s lawyer Richard Samdperil has filed motions seeking dismissal of the charges against Marconi.
“(N)one of the charges allege, and none of the discovery provided by the State suggests, that Mr. Marconi ever directly accessed or obtained internal records from the New Hampshire Department of Safety, Division of Motor Vehicles.
“Rather, the discovery material suggests that N.L. (Neil Levesque) or someone acting on his behalf, voluntarily submitted copies of his boat and automobile registrations to the Division of Ports and Harbors in support of either a pier use permit or a boat mooring application,” Samdperil wrote.
Bradley Cook, who had spoken out publicly in favor of Geno Marconi, was later indicted for allegedly lying to the grand jury investigating Marconi. Juror selection in Cook’s trial is scheduled for Jan. 5, 2026.