A day after Attorney General John Formella’s prosecution of Supreme Court Justice Barbara Hantz Marconi fizzled into a single misdemeanor charge, the state’s top law enforcement officer suffered another setback as the courts cleared the way for her return.
Formella was asked about the court’s decision during a State House press event on Wednesday, announcing the Ayotte administration’s new plan to increase highway safety.
“As to the decision that the court made to rescind the orders putting her on leave, that’s not a decision we expected. It’s not a decision we were aware would happen,” Formella said.
In fact, Formella’s office played a key role in fast-tracking Hantz Marconi’s swift return to the state’s highest court. A stipulation in her negotiated plea deal required prosecutors to state on the record, in court, that she did not commit a “serious crime,” as defined by the rules governing the New Hampshire Attorney Discipline Office.
That opened the door for her defense attorney, Richard Guerriero, to seek Supreme Court approval to reinstate her law license on Wednesday.
After Formella’s office indicted Hantz Marconi last year on seven criminal charges — two felonies and five Class A misdemeanors — she was immediately placed on leave from the court and agreed to an interim suspension of her law license.
But moments after the case was resolved, with the attorney general dropping all previous charges and Hantz Marconi pleading no contest to a single Class B misdemeanor, the Supreme Court issued an order allowing her to return to work once her license was reinstated.
Guerriero then filed a motion with the Supreme Court late Wednesday in which Attorney Discipline Office General Counsel Brian Moushegian agreed that Hantz Marconi should get her license back, because she did not commit a “serious crime.”
“Moushegian specifically authorized (Guerriero) to represent the assent of his office to this motion to vacate the (2024) order suspending Justice Hantz Marconi from the practice of law on an interim basis and to reinstate that right,” Wednesday’s motion states.
Guerriero was unavailable for comment.
Several Granite State attorneys told NHJournal on background that they were surprised by Formella’s handling of the case — particularly his final move, which is allowing Hantz Marconi to return to the bench.
“Saying ‘I didn’t know this would happen’ is ridiculous. They had to know this was a strong probability when they agreed to the plea deal,” one veteran attorney told NHJournal. “There’s a reason the defense attorneys put the attorney general’s declaration of ‘no serious offense’ in the negotiations.”
There are also questions in the legal community about whether Hantz Marconi will actually return, with at least one potential hurdle remaining: the Attorney Discipline Office (ADO).
The ADO will still conduct its own investigation into Hantz Marconi, but that review can take place while she serves on the court, attorney Tony Soltani told NHJournal. And because Formella agreed to the “serious crime” declaration, the most the ADO could impose is a formal censure or reprimand — not removal from the bench.
“There’s nothing to stop her from going back to work,” Soltani said.
When WMUR’s Adam Sexton asked Formella about the court’s actions, he tried to put on a brave face, insisting that justice had been done.
“We ultimately charged the case because we felt that Justice Hantz Marconi had violated the law … by asking Gov. (Chris) Sununu to secure privileges for her that she wasn’t entitled to, and ultimately she was convicted of that conduct,” Formella said.
“I think I would say that from the perspective of the DOJ, we’re disappointed in (the court’s) decision, but it’s not our decision to make. That’s a decision for the court to make.”
Formella’s office did not respond to NHJournal’s inquiries on Wednesday about the likelihood of Hantz Marconi’s license being reinstated. But Hantz Marconi and her legal team appear to be following the path they negotiated with the Attorney General’s Office in her plea agreement.
Soltani likened the entire affair to Tom Wolfe’s novel “The Bonfire of the Vanities,” in which an overzealous prosecutor plays a central role.
“Ever since day one, this whole thing stunk to high heaven,” Soltani said.
Hantz Marconi’s prosecution is already having a chilling effect on lawmakers, Soltani added. A former Republican state representative, he said legislators have told him they are now wary of contacting state officials with constituent complaints.
“They don’t want to get indicted,” Soltani said. “I don’t think the AG did any favors for anybody in this state.”
“The state likely spent a small fortune investigating and prosecuting Hantz Marconi, brought seven indictments against her as a tactic to overwhelm her defense, and hobbled the New Hampshire Supreme Court for more than a year. Then they pled this thing down to aggravated jaywalking with a fine, and agreed it wasn’t a serious offense,” Soltani said.
“The Supreme Court was firing at 80 percent horsepower for over a year now, and for what? I still don’t know what her crime was. … This should never have gone as far as it did.”
EDITOR’S NOTE: Tony Soltani has represented reporter Damien Fisher in previous, unrelated 91A court cases.
