This story will be updated if Gov. Chris Sununu and Attorney General John Formella respond to a request for comment.
By NANCY WEST, InDepthNH.org
Indicted state Supreme Court Justice Anna Barbara Hantz Marconi’s lawyer has filed another motion to dismiss all indictments against her arguing her alleged conduct is protected by the First Amendment, the Constitutional right of redress and judicial immunity.
The indictments against Hantz Marconi are based on the claim she talked to Gov. Chris Sununu and Pease Development Authority Chairman Steve Duprey about Attorney General John Formella’s investigation of her husband Geno Marconi and how that was disrupting her work at the Supreme Court by causing her to recuse herself from numerous cases.
Geno Marconi was on paid leave at the time as the director of the Division of Ports and Harbors, which is part of the Pease Development Authority. He has since been indicted on what one supporter called “petty charges.”
“There is no claim that Sununu or Duprey had any authority to influence the investigation of Geno Marconi, nor could there be, because they had none,” Guerriero wrote in a motion filed Friday that was made public on Tuesday.
“There is no claim that a bribe or benefit was offered or requested. There is no claim that some loss or disadvantage was threatened. There is not even a claim that (Hantz Marconi) asked them to do anything,” Guerriero wrote.
“Rather the Attorney General’s claim is that by expressing her opinion to Gov. Sununu and PDA Chair Duprey about issues of public concern which were affecting an important public institution – the New Hampshire Supreme Court – Justice Hantz Marconi somehow committed a crime.
“The Attorney General could not be more wrong. What the Attorney General has actually alleged is that Justice Hantz Marconi exercised an important constitutional right – the right of every American citizen to speak to public officials about matters of public concern. That is not a crime. It is the exact opposite,” Guerriero said.
Guerriero said what Hantz Marconi did is a “constitutionally protected and cherished freedom.
“The court should not allow the Attorney General to prosecute constitutionally protected conduct. The court should dismiss all of the indictments,” he wrote.
The indictments should also be dismissed on the grounds of judicial immunity.
“When acting in her judicial capacity, Justice Hantz Marconi is immune from prosecution for her judicial acts, namely expressing her opinion to the governor about how the Attorney General’s investigation into her husband was affecting her docket and her ability to serve as a justice of the New Hampshire Supreme Court.”
Guerriero also moved to dismiss the indictments against Hantz Marconi late last month on the grounds that Attorney General John Formella and all of the attorneys in his office attorneys are disqualified from the case because of Formella’s attorney-client relationship with Sununu, who is the “star witness” in Formella’s case against Hantz Marconi.
The defense maintains that objection, Guerriero said.
Until the disqualifications issue is resolved, the state should not be required to respond to this motion and a response will not be required if the indictments are dismissed, Guerriero wrote.
“The supposed criminal conduct in this case is that Justice Hantz Marconi expressed her opinion to two public officials regarding an investigation over which they had no authority,” Guerriero wrote.
Regarding the Sununu conversation, Formella says Hantz Marconi was wrong for “telling Gov. Christopher Sununu that an investigation into (her husband) Geno Marconi was the result of personal, petty, and or political biases; that there was no merit to 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 or imminently pending before the NH Supreme Court,” Guerriero wrote.
Guerriero said Formella took a shotgun approach “unable to settle on any particular basis for calling this conduct a crime.”
According to Formella, Hantz Marconi’s conduct amounted to both an attempt and solicitation of the crime of Improper Influence and the crime of solicitation of the crime of official oppression, the crime of obstruction of government administration and of solicitation of misuse of position, the motion states.
Regarding the Duprey conversation Formella says that Hantz Marconi solicited “Pease Development Authority Chairperson Steve Duprey to secure a governmental privilege to which she was not otherwise entitled regarding the employment of…and or investigation into” her husband and therefore violated misuse of position.
“But the Attorney General does not reveal the allegedly improper words spoken by Justice Hantz Marconi and does not allege what benefit she sought to which she was not entitled, or how she allegedly asked for it,” Guerriero wrote.
“The indictments do not allege that either Sununu or Duprey had any authority to influence the investigation into Geno Marconi,” or that Hantz Marconi offered any kind of bribe or made any kind of threat, or asked Sununu or Duprey to take any action, he said.
“To the contrary, the allegation is just that the Justice stated her opinion about the investigation of her husband. The indictments do not allege that either conversation was conducted in secret or that Justice Hantz Marconi attempted to conceal the conversations.
“The allegation is just that having the conversations and expressing her opinions about the investigation amounted to criminal conduct,” Guerriero wrote.
Guerriero said none of the indictments against Hantz Marconi state a crime.
“No New Hampshire law prohibits a New Hampshire Supreme Court Justice from meeting with a governor and talking with him about the effects of a criminal case on her work at the Supreme Court. To the contrary Justice Marconi, just like every other citizen, has the right to voice her opinions and concerns to the governor. The same goes for the conversation with Duprey as such conversations are protected and encouraged by bedrock constitutional principles,” he wrote.
The First Amendment to the United States Constitution protects “the right of the people…to petition the government for redress of grievances,” the motion states.
“The Attorney General has simply not alleged any type of threat, promise, bribe or benefit that could be constitutionally unprotected. Instead, the Attorney General has alleged core First Amendment activity -petitioning government officials for the redress of grievances – to be criminal conduct. That cannot stand,” Guerriero wrote.
As to judicial immunity, Guerriero said it is well-settled that judges are afforded absolute immunity for activities undertaken in their judicial role.
“Allowing the Attorney General to prosecute a sitting justice for actions undertaken in her capacity as a judge would threaten the independence of the judiciary and invite unwarranted attacks by prosecutors,” he said.
If the court does not dismiss the indictments, the court should order the Attorney General to provide a bill of particulars identifying the alleged conduct which is not constitutionally protected and not within the scope of judicial immunity, the motion states.
In the motion seeking disqualification Oct. 31, Guerriero wrote:
“By all accounts including his own Attorney General Formella is and has been for years Gov. Chris Sununu’s lawyer.”
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.”
He said without a doubt, Sununu is the single most important witness regarding the charges against Hantz Marconi due to their June 6 conversation.
Hantz Marconi was placed on administrative leave by the Court on July 25.
On Oct. 16, Formella announced indictments against Hantz Marconi relative to the conversations with Sununu and Duprey, Sununu’s appointee as chairman of the Pease Development Authority.
Geno Marconi 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.
In an op-ed piece published in the Portsmouth Herald and InDepthNH.org, Peter Loughlin, a retired attorney who served more than 30 years on the Pease Development Authority Board, said Geno Marconi is an honest man who has been badly treated.
“After damaging Geno’s reputation with a public suspension; after examining Geno’s personal life and finances; after grilling multiple witnesses under oath before a grand jury with questions implying that Geno had done something nefarious and after 6 months and tens of thousands of dollars of expenditure of public funds, the attorney general’s office came up with nothing that would justify a suspension, let alone months of anguish. Instead of issuing an apology, the attorney general obtained indictments on petty charges perhaps to attempt to justify this investigation,” Loughlin wrote.
Gov. Sununu and Attorney General Formella did not immediately respond to a request for comment.
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.
