By NANCY WEST, InDepthNH.org
CONCORD – Attorney General John Formella missed the most important points in objecting to state Supreme Court Justice Anna Barbara Marconi’s motion to disqualify him and dismiss the indictments against her, according to her latest motion.
Hantz Marconi’s lawyer Richard Guerriero replied to Formella’s objection in Merrimack County Superior Court on Friday.
He also criticized Formella for accusing the defense of using the motion to disqualify Formella and dismiss the indictments against Hantz Marconi as a form of “gamesmanship” in the reply.
“The reasons to believe there is a conflict of interest are substantial. Whether the Attorney General who indicted a sitting Supreme Court Justice has a conflict of interest is a very serious issue which must be addressed.
“At a minimum, the Attorney General should see that.
“(T)he suggestion of ‘gamesmanship’ is tantamount to an accusation of bad faith on the part of defense counsel when there is no basis for such an accusation,” Guerriero wrote.
“More importantly, the accusation is a sign of exactly the kind of partiality in litigation which the defense fears. The Attorney General ignores the Supreme Court’s direction that ‘the prosecutor has a duty to the public to achieve justice and a duty to the defendant to never lose sight of the fact that the defendant is entitled to a full measure of fairness.’”
“This is another sign that the Attorney General should not be prosecuting this case,” Guerriero wrote.
Formella’s objection didn’t address the most important points in the defense motion, misstates the motion, and relies on case law that doesn’t apply, Guerriero wrote in his reply.
“…(T)he facts here are undisputed. Formella is and has been Governor Sununu’s attorney, as private counsel, as legal counsel to the Governor, and as Attorney General. Formella’s progression from each of those positions to the next is directly attributable to his relationship with Sununu,” Guerriero wrote.
Formella’s objection fails to address the core of the defense motion, that Formella is conflicted, Guerriero said.
“…Formella cannot serve as lawyer for Governor Sununu and prosecute this case. His lengthy history of serving as Sununu’s personal lawyer and ally creates a conflict of interest because of the significant risk that he will be biased in his assessment and investigation of Justice Hantz Marconi,” the reply motion states.
Formella didn’t address the root of all of the conflict: Formella’s longstanding personal and professional relationship with his client, Sununu, “the very public official who Justice Hantz Marconi is charged with attempting to improperly influence and therefore the allegedly aggrieved party.”
This conflict should have been addressed by Formella at the outset of any investigation, Guerriero wrote.
It was Formella who created the disqualification issues by his handling of the case “and could have been avoided.”
“(Formella) could have hired outside counsel, instructed them to remain independent, and adopted procedures to screen himself and his attorneys from the prosecution,” Guerriero wrote.
The case has been very active in its early stages since Hantz Marconi was indicted Oct. 16. She agreed to having her license to practice law suspended until the case is resolved while admitting no guilt.
And Formella has been granted more time to file an objection to Hantz Marconi’s other motion, that one claiming her First Amendment rights have been violated.
The indictments accuse her of talking to Gov. Chris Sununu and Pease Development Authority Chairman Steve Duprey about Formella’s criminal investigation of her husband Geno Marconi.
Hantz Marconi claims she spoke to Sununu with permission from Supreme Court Chief Justice Gordon MacDonald about how the investigation was “petty” and making it necessary for her to recuse herself from cases before the court involving the Attorney General’s Office.
In August, Bradley Cook, a longtime friend of Geno Marconi’s, told InDepthNH.org he believes Sununu was behind the investigation into Hantz-Marconi to pressure Geno Marconi to resign as director of the New Hampshire Division of Ports and Harbors.
Indictments against Geno Marconi of Stratham and Bradley Cook of Hampton were made public the day after Hantz Marconi’s indictments were announced by Formella.
Cook is also the chairman of the Division of Ports and Harbors Advisory Council.
Geno Marconi was indicted for tampering with witnesses and informants by retaliating against a witness or informant by allegedly providing confidential motor vehicle records pertaining to N.L. to another individual B.C. April 4 violating the Driver Privacy Act.
N.L. is believed to be Neil Levesque, the vice chairman of the Pease Development Authority and director of the New Hampshire Institute of Politics at Saint Anselm College.
And B.C. is believed to be Bradley Cook.
Geno Marconi was also indicted for allegedly falsifying physical evidence hindering an investigation by deleting a voicemail/and or voicemails from a phone on April 22.
Peter Loughlin, a retired attorney who served more than 30 years on the Pease Development Authority Board, said in a published op-ed that 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 has declined comment on the case to InDepthNH.org. Formella’s spokesman said Formella will respond in court documents.
Charges against Cook claim he lied to the grand jury investigating Geno Marconi on Sept. 4 by saying that he did not communicate with/and or receive materials from Geno Marconi relating to the pier permit of N.L.
