The person accusing New Hampshire Supreme Court Justice Anna Barbara Hantz Marconi of potential lawbreaking is Gov. Chris Sununu.
The person prosecuting her alleged wrongdoing, Attorney General John Formella, works for Sununu.
And that, Hantz Marconi’s lawyers argue, is a conflict of interest. So they’re asking Merrimack Superior Court Judge Martin Honigberg to throw out the case as a result.
Prosecutors from the Attorney General’s Office say it’s just her legal team’s attempt to grab a get-out-of-free card.
It’s now up to Merrimack Superior Court Judge Martin Honigberg to decide who’s right.
Hantz Marconi is accused of illegally trying to influence Sununu to intervene in the criminal investigation involving her husband, Ports Director Geno Marconi, during a June meeting. Geno Marconi was indicted three months later on charges he leaked confidential driver’s license records and destroyed evidence.
In Merrimack Superior Court in Concord on Monday, Hantz Marconi’s lawyer, Richard Guerriero, said Formella cannot fairly prosecute the case due to his personal and professional relationship with Sununu. Formella represented Sununu in private practice, worked on Sununu’s original transition team after the 2016 election, served as the governor’s counsel, and now owes his current position as attorney general to Sununu.
“Every accused person is entitled to a prosecutor who is impartial,” Guerriero said. “I don’t think we can ignore the fact Attorney General Formella has a close relationship with this one very powerful public official.”
Formella is supposed to represent every New Hampshire citizen as attorney general, but he can’t do that fairly given his previous role as Sununu’s attorney and his attorney general duties that require he represent the governor in civil matters.
The case has highlighted a problem that comes from a system where the attorney general is selected by the state’s chief executive. In 43 states and the District of Columbia, the top cop is elected by the voters. Only four other states follow the New Hampshire model.
“A prosecutor cannot serve two masters,” Guerriero said. “He can’t be loyal to his client, and at the same time fairly assess the merits of a possible case against an accused person.”
Assistant Attorney General Joe Fincham countered that the alleged conflict of interest Guerriero is claiming is nothing more than an attempt to derail any criminal charges against Hantz Marconi.
“The defense is asking for immunity. If you commit a crime in front of the governor … you are immune from prosecution in the state of New Hampshire,” Fincham said. “This alleged conflict means no one can prosecute this defendant … which is an absurd result.”
But Guerriero said prosecutors are trying to blame him when they knew for months Formella’s conflict is a live legal issue in the case. He spoke to them before the case against Hantz Marconi was brought to a grand jury, urging them to appoint a special prosecutor. Short of hiring an outside prosecutor, Guerriero said they could have taken steps to remove Formella from the prosecution and shield him from the case to protect Hantz Marconi’s rights and avoid the conflict. But that did not happen.
“This could have been different,” Guerriero said. “But they plowed ahead and now we’re here three months later.”
Guerriero wants the charges dismissed and have the state start over with a new, independent prosecutor. Because grand juries only consider evidence presented by a prosecutor, without any argument from a defense attorney, it’s essential the prosecutor be absolutely fair and impartial, Guerriero said.
“The only protection we have at the grand jury is if the prosecutor is impartial,” Guerriero said.
For his part, Honigberg seemed skeptical of Guerriero’s argument Formella is conflicted due to his role as civil litigator for Sununu and the rest of the executive branch. The judge remarked every attorney general represents every governor in civil matters while also prosecuting every criminal case.
But things get murky when it comes to the matter of Formella’s prior relationship with Sununu.
Attorney-client ethics rules mean Formella is bound not to disclose information he learned about Sununu in private practice and as the governor’s counsel, even if it is exculpatory for Hantz Marconi, Honigberg noted.
Guerriero, speaking hypothetically to the judge, suggested that if Formella knew something about Sununu’s statements or actions regarding the Pease Development Authority (PDA).
“Suppose there was some interest of Sununu’s in the Pease Development Authority that [Formella] discussed with Sununu. It’s knows [Sununu’s] taken action at Pease. Suppose something the governor said about Pease becomes an issue, contrary to what he’s saying now,” Guerriero said.
Geno Marconi clashed with the Pease Development Board over a proposed Rye Harbor development. While the board and Sununu supported spending $1 million in federal money on a raised shopping area at the harbor, Marconi and his co-defendant Brad Cook opposed the plan. The PDA backed off the plan in September following a push back from the community. Geno Marconi is accused of leaking private information of an individual known as N.L. in the indictments. It’s believed that N.L. is Neil Levesque, PDA vice chair and the executive director of the New Hampshire Institute for Politics at Saint Anselm College.
