December 2 – Supreme Court Associate Justice Anna Barbara Hantz Marconi stood before the judge Monday afternoon as her attorney argued to disqualify Attorney General John Formella from the case and dismiss the charges, alleging that she had interfered with a criminal investigation involving her husband.
Hantz Marconi’s attorney, Richard Guerriero, argued that Formella represents Gov. Chris Sununu, a key witness in the case, and “cannot serve two masters” in prosecuting Hantz Marconi.
“Governor Sununu is the person who was allegedly improperly influenced, so how can he protect the interests of the governor and also fairly judge the case against the accused person, Judge Hantz Marconi,” Guerriero said.
Before the hearing in Merrimack County Superior Court, Hantz Marconi agreed to waive the arraignment.
Hantz Marconi was indicted by a Merrimack County grand jury on two charges: attempted undue influence and criminal solicitation of undue influence after she allegedly interfered in a criminal investigation involving her husband, Geno Marconi, director of the Ports Department and Ports in the Pease Development Authority. Geno Marconi has been on paid leave since April.
She was also charged with five crimes: criminal incitement of official oppression, official oppression, obstruction of government administration, and two counts of criminal incitement of abuse of position.
Her license to practice law in New Hampshire was suspended while she was on administrative leave from the court.
In October, Guerriero filed a motion alleging that Chief Justice Gordon MacDonald told his client that if she had concerns, she “had the right to speak to the governor, just as any other citizen would,” according to court documents.
Judge Martin Honigberg took up the case after discussing the motion with both parties.
Guerriero said Formella represented Sununu before he took office and was a member of his transition team to the governor’s office and served as legal counsel before Sununu appointed him attorney general.
“The prosecutor is supposed to be impartial, do justice and try to present a case fairly,” Guerriero said. “How can they do that when the key witness in the case is their client?”
He argued that Formella has not recused himself from the case and that the state has not instituted “any form of screening” to keep him out of the case.
Prosecutor Joe Fincham argued that the Public Integrity Unit, which is handling the case, does not represent the governor.
“As long as we are separated from that team and they are separated from us, there is no conflict,” he said. The team has been given adequate independent representation, Fincham said.
If outside counsel were appointed, they would still operate under the authority of the Attorney General.
“So essentially the defendant in this case is asking for immunity,” Fincham said. “If you commit a crime in the presence of the Governor and another high-ranking client of the Attorney General, you are immune from prosecution in the State of New Hampshire because the Attorney General represents a witness in the case.”
Fincham said Sununu has no personal interest in the case.
Last week, Geno Marconi waived arraignment in Rockingham County Superior Court, where Judge Andrew Schulman granted him leniency to contact to file a case against him on charges of witness tampering and tampering with evidence proceeds.
Guerriero pushed back on the idea that she was seeking special treatment in the investigation into her husband.
“I think if there had been a request to cite special treatment, they would have included those words in the indictment,” Guerriero said. “What the indictment says is that she said the investigation into her husband was unfounded and it led to her being barred from many Supreme Court cases.”
