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Attorney General John Formella and his entire office need to be dismissed from Associate Supreme Court Justice Anna Barbara Hantz Marconi’s criminal case due to serious conflicts of interest, according to her attorney Richard Guerriero.

“Attorney General Formella and his subordinate attorneys should not have been handling this matter before the grand jury and should not be prosecuting it now,” Guerriero wrote in a motion filed Thursday.

Ultimately, Guerriero wants all of the charges dismissed. Short of that, he wants Formella and his office removed from the case entirely. The concern Guerriero raises is that Formella not only has a long-standing personal and professional relationship with Gov. Chris Sununu, but he considers himself to be the chief executive’s lawyer in his role as attorney general.

Hantz Marconi is charged with felonies for allegedly trying to pressure Sununu to drop the criminal investigation into her husband, New Hampshire Ports Director Geno Marconi. That makes Sununu, Formella’s friend and client, the state’s key witness in the alleged crimes. 

Before becoming attorney general, Formella was a private attorney working for Sununu and his family who worked on the campaign for governor, and then became Sununu’s legal counsel in office. In his role as attorney general, Formella told NHJournal during a podcast interview that he considers himself Sununu’s attorney. 

“As far as the relationship with the governor, for every attorney general, the governor is probably their most important client. So, it’s an attorney-client relationship,” Formella said. 

The attorney general is the state’s chief prosecutor as well as the governor’s attorney in civil matters, according to memos from the Department of Justice.

Formella is tasked with making decisions on criminal prosecutions handled by his office, and he is in charge of directing his staff who handle the day-to-day work. With Hantz Marconi’s case, the prosecution is being handled by the Public Integrity Unit (PIU), which was created by order of Sununu in 2020 and not the legislature. Guerriero wrote that means the PIU can be subject to Sununu’s wishes, and not the work of the public.

“As a result of how it was created, Gov. Sununu has unique power over the PIU. Sununu determines what funding to recommend to the legislature for the PIU. Furthermore, he has the power to unilaterally dissolve the unit by executive order,” Guerriero wrote.

Because of that lack of impartiality, all of the indictments need to be dismissed, Guerriero wrote. The charges were handed up by a grand jury two weeks ago, but because of Formella and his office’s conflict of interest, Guerriero argues the grand jury’s findings should be discounted. Grand jury proceedings happen in secret, and there is no one representing the accused. Instead, prosecutors alone present evidence for the jurors to consider.

“If there is any chance a grand jury will make a fair decision about whether to indict a person, rather than simply signing off on the indictments presented to them, it depends on the impartiality of the prosecutors,” Guerriero wrote. “The prosecutors here are not impartial.”

Four Supreme Court justices, including Chief Justice Gordon MacDonald, have recused themselves from the case. MacDonald, like Sununu, is a witness in the case as he reportedly told Hantz Marconi she had a right to talk about her husband’s investigation with the governor before the June meeting at the heart of the matter.

“I think you can do that. You are a constituent and have concerns,” MacDonald reportedly said.

Hantz Marconi then made an appointment with Sununu through official channels to speak with him on June 6 in his office. Sununu’s current legal counsel, Rudolph Ogden attended the meeting, which was on Sununu’s official calendar.

“The meeting was open and documented in multiple ways — not exactly the usual route to corruption,” Guerriero wrote.

Hantz Marconi and Gereero maintain there was no crime committed, and the state has not alleged any actual criminal acts.

Hantz Marconi allegedly told Sununu there was no merit to any of the allegations against her husband and the case “needed to wrap up quickly because she was rescued from important cases pending or imminently pending before the New Hampshire Supreme Court,” the indictments state.

No threat was made, nor was there any improper request, Guerriero claims. Prosecutors have not yet made their evidence available to the defense, so it is not clear who reported Hantz Marconi to Formella. Earlier this week, a panel of substitute judges sitting for the recused Supreme Court ordered Hantz Marconi’s law license suspended based on the fact she’s been charged with a felony.

Geno Marconi has been on leave from his job directing the ports since April of this year while the criminal investigation into his alleged acts proceeded. Geno Marconi and Bradley Cook, the chairman of the Division of Ports and Harbors Advisory Council and a longtime fishing boat captain, were both indicted the same week as Hantz Marconi. Geno Marconi is accused of giving confidential driving records of an unnamed person to Cook, though the official charges give very little detail about the alleged crime. 

Hantz Marconi is facing charges of Attempt to Commit Improper Influence, Criminal Solicitation of Improper Influence, Official Oppression, Criminal  Solicitation of Official Oppression, Obstructing Government Administration, and Criminal Solicitation of Misuse of Position. Geno Marconi is indicted on felony charges of Tampering with Witnesses and Informants and Falsifying Physical Evidence. He’s also charged with four class A misdemeanors – two counts of Driver Privacy Act Violations and two counts of Obstructing Government Administration.

The four remaining New Hampshire Supreme Court justices won’t hear any arguments related to Associate Supreme Court Justice Anna Barbara Hantz Marconi after they ordered themselves off the case.

“Resolving it would require us to adjudicate the conduct of a current colleague, Anna Barbara Hantz Marconi,” the justices wrote in the order.

The order comes Wednesday hours after Hantz Marconi’s legal team filed a motion to boot Chief Justice Gordon MacDonald from the case, naming him as a material witness in her alleged crime. Hantz Marconi is charged with trying to pressure Gov. Chris Sununu to stop the criminal probe into her husband, New Hampshire Ports Director Geno Marconi.

Justice Barbara Hantz Marconi listens to oral arguments during a 2023 hearing.

According to the indictments handed down last week, Hantz Marconi met with Sununu in June and tried to get him to stop the investigation into Geno Marconi. She allegedly told Sununu there was no merit to any of the allegations against her husband and the case “needed to wrap up quickly because she was recused from important cases pending or imminently pending before the New Hampshire Supreme Court,” the indictments state.

But, according to the motion filed Wednesday, MacDonald encouraged her to talk to Sununu about her husband’s investigation, and told her it would not be illegal for her to do so.

“Justice Hantz Marconi did meet with Governor Sununu on June  6, 2024. The meeting was entirely lawful and proper. One of the key facts demonstrating that the meeting was lawful and proper is that Justice Hantz Marconi communicated with Chief Justice MacDonald prior to meeting with Governor Sununu. Justice Hantz Marconi explained to Chief Justice MacDonald that she was considering requesting a meeting with the Governor. The Chief Justice’s response was, ‘I think you can do that – You  are a constituent and have concerns.’ Justice Hantz Marconi understood this comment to confirm her view that she had the right to seek to address the Governor, just as any other citizen would have that right,” her motion states.

Supreme Court Chief Justice Gordon MacDonald

Hantz Marconi was placed on administrative leave soon after that June 6 meeting. Geno Marconi has been on leave from his job directing the ports since April of this year. Both were indicted last week.

Hantz Marconi is facing charges of Attempt to Commit Improper Influence, Criminal Solicitation of Improper Influence, Official Oppression, Criminal Solicitation of Official Oppression, Obstructing Government Administration, and Criminal Solicitation of Misuse of Position. Geno Marconi is indicted on felony charges of Tampering with Witnesses and Informants and Falsifying Physical Evidence. He’s also charged with four class A misdemeanors–two counts of Driver Privacy Act Violations and two counts of Obstructing Government Administration.

Geno Marconi is accused of giving confidential driving records of an unnamed person to Brad Cook, chairman of the Division of Ports and Harbors Advisory Council and a longtime fishing boat captain. Cook is charged with one count class B felony Perjury as well as two counts of class A misdemeanor False Swearing.

In the meantime, Hantz Marconi agreed to a suspension of her law license as the case against her is proceeding. The New Hampshire Attorney Discipline Office planned to open up a formal proceeding to get Hantz Marconi suspended, but the justice agreed to the suspension.

If she were to fight the Attorney Discipline process, Hantz Marconi’s law license case would eventually end up before the Supreme Court and MacDonald. The Supreme Court’s total recusal effects that process, as well any challenges she brings during her criminal trial in Merrimack Superior Court.

Rather than merely having MacDonald remove himself from the case, Associate Justices James Bassett, Patrick Donovan, and Melissa Countway are also stepping aside. If a full slate of alternates cannot be found, however, at least some of the justices will take their seats.

“Our recusal is conditioned upon the availability of substitute justices to participate in this case. In the event that substitute justices are not available, the ‘rule of necessity’ may compel our participation,” the order states. 

Under state law, the courts will randomly pick substitutes from a pool of retired Supreme Court and Superior Court justices. If there are not enough retired justices available, a random selection will be made from active Superior Court Justices, and then District Court justices if the need arises.

New Hampshire Ports Director Geno Marconi is formally facing criminal charges a day after his wife, Associate Supreme Court Justice Anna Barbara Hantz Marconi, was indicted for interfering in her husband’s criminal investigation.

A grand jury indicted Marconi on two class B felonies – Tampering with Witnesses and Informants and Falsifying Physical Evidence. He’s also charged with four class A misdemeanors – two counts of Driver Privacy Act Violations and two counts of Obstructing Government Administration.

Also charged on Thursday: Bradley Cook, chairman of the Division of Ports and Harbors Advisory Council and a longtime fishing boat captain. Cook was indicted on one class B felony charge for Perjury as well as two counts of class A misdemeanor False Swearing.

Marconi illegally provided Cook with the confidential driving records of another person, known in the indictments as N.L., according to the indictments. Marconi is also alleged to have deleted a voice mail in order to hinder any investigation, the indictments state. Cook is accused of lying to the grand jury when questioned about N.L.’s driving records.

The purpose of the alleged lying and leaking of confidential records by two public officials is not yet clear. Cook spoke to the press before he was called to testify before the grand jury in September. Cook blamed the whole drama on Gov. Chris Sununu and a development plan for Rye Harbor that both Cook and Marconi opposed.

“I would say all of this is because Geno would not bend a knee to Chris Sununu, wouldn’t do what the governor wanted, and instead supports what is right and fair for other people,” Cook told InDepthNH.

Cook did not respond to a request for comment on Thursday. Marconi’s attorneys also did not respond.

Granite State political circles have been buzzing about the Marconis since Geno was placed on leave from his Ports job in April without explanation. That was followed by the stunning news that Justice Hantz Marconi was put on 90-day administrative leave in July, also without an explanation.

It now appears punitive action was taken after she allegedly approached Sununu in a private meeting. Hantz Marconi had been recusing herself from Supreme Court cases involving the New Hampshire Attorney General’s Office for months. The Supreme Court issued a new order Thursday extending Hantz Marconi’s leave indefinitely as she deals with the criminal charges. 

Hantz Marconi, 68, was appointed to the Supreme Court in 2017 after being nominated by Sununu. She is close to the mandatory retirement age of 70 for New Hampshire judges. Her term ends in February 2026.

Cook and Marconi both opposed the Pease Development Authority’s (PDA) $1 million plan to develop a raised platform at Rye Harbor for retail shops and restaurants. Though it had backing from the PDA and Sununu, the plan was amid local opposition shelved in August.

Cook and Marconi are due in Rockingham Superior Court on Nov. 27 for arraignment. Hantz Marconi is due for her arraignment in Merrimack Superior Court on Nov. 21. She’s accused of trying to pressure Sununu to drop the investigation, and she is alleged to have sought private information from PDA Chair Steve Duprey. 

Republicans who spoke to NHJournal on background are split on the matter. Many are friends of Justice Hantz Marconi and find it hard to believe she would intentionally break the law, even on behalf of her husband. Others complain that, once she knew the situation she was in, she should have resigned and allowed another justice to be appointed. And there is widespread criticism of how Formella is handling Justice Hantz Marconi’s part in the scandal.

“If he has enough to charge her, then he should have enough to get her to resign and avoid this mess,” one Republican activist told NHJournal.

Another Republican with close ties to Pease said the information blackout is a problem.

“It’s the biggest mystery out there. Somebody should let us know what the hell is going on. This has been going on forever.”

This isn’t the first time in recent memory a New Hampshire Supreme Court Justice has been in trouble. In 2000, Associate Justice Stephen Thayer’s divorce wound up before the state Supreme Court, forcing two of his fellow members to recuse themselves. That resulted in Chief Justice David Brock appointing two different judges to a panel overseeing the Thayer divorce. 

In the mess that ensued, Thayer was forced to resign to avoid criminal charges and Brock was impeached. He was acquitted in the Senate.

New Hampshire Supreme Court Associate Justice Anna Barbara Hantz Marconi is facing two felonies for allegedly trying to influence the criminal investigation into her husband, New Hampshire Division of Ports and Harbors Director Geno Marconi.

“No person is above the law, and the evidence in this case required investigation and presentation to the grand jury,” said Attorney General John Formella. “The decision to charge a sitting justice of the New Hampshire Supreme Court was not made lightly, and it comes after careful and thoughtful deliberation. It is my hope that the public will be reassured that all individuals, including public officials, are treated equally under the law.”

According to the indictments, during a June meeting Hantz Marconi tried to get Gov. Chris Sununu to stop the investigation into Geno Marconi by using Sununu’s influence with the New Hampshire Department of Justice. She allegedly told Sununu there was no merit to any of the allegations against her husband and the case “needed to wrap up quickly because she was recused from important cases pending or imminently pending before the New Hampshire Supreme Court,” the indictments state.

Hantz Marconi’s attorneys Richard Guerriero, Jonathan Kotlier, and Oliver Bloom issued a statement shortly after the indictments were announced proclaiming her innocence.  

“Justice Hantz Marconi is innocent. She did not violate any law or rule. We will fight the charges to the fullest extent permitted by the law, starting with motions to dismiss the case, which we anticipate filing soon. We intend to fight these wrongful accusations in court, where the fight should occur, and not in the media,” the statement reads.

Hantz Marconi was suspended from her job on the high court this summer, though at the time there was no explanation for her sudden removal. The deadline for her 90-day administrative was pending for later this month. 

Geno Marconi was suspended from his job by the Pease Development Authority Board this spring, and again, without a public explanation. A grand jury has reportedly heard evidence against Geno Marconi. So far, no charges have been filed. 

The indictments claim Hantz Marconi interfered with the investigation on multiple occasions starting in April, tried to get Sununu to pressure the Department of Justice, and tried to get privileged information out of Pease Development Authority Chair Steve Duprey about her husband’s case.

She is charged with two class B felonies – one count of Attempt to Commit Improper Influence and one count of Criminal Solicitation of Improper Influence, as well as five class A misdemeanors – two counts of Criminal Solicitation of Misuse of Position, one count of Criminal Solicitation of Official Oppression, one count of Official Oppression, and one count of Obstructing Government Administration. 

Class B felonies are punishable by up to 3.5 to 7 years in state prison and a fine of up to $4,000. Class A misdemeanors are punishable by up to 12 months in a house of corrections and a fine of up to $2,000.

She is now scheduled to appear in Merrimack Superior Court on Nov. 21 for arraignment.