The criminal case against Supreme Court Justice Anna Barbara Hantz Marconi is moving forward, after a superior court judge rejected an effort to toss out indictments alleging she attempted to sway Gov. Chris Sununu into intervening in an investigation involving her husband.
Attorneys for Hantz Marconi, who was appointed to the New Hampshire Supreme Court by Sununu in 2017, asked a judge to dismiss the indictments or require the appointment of a special counsel to replace New Hampshire Attorney General John Formella and his team as the prosecutors on the case. They argued that Formella could not be fair and impartial in the criminal case against her because of his own long-standing ties to Sununu, who is likely to be a central witness in the corruption probe.
In denying the request, Merrimack County Superior Court Judge Martin Honigberg said that “a defendant must do more than speculate about a potential conflict but rather demonstrate that one is likely to occur.”
Hantz Marconi was indicted in October on seven counts related to allegations that she attempted to improperly influence an investigation into her husband, longtime state ports director Geno Marconi, during a private conversation with the governor and his personal attorney.
Before Formella took over as head of the New Hampshire Department of Justice, he served as Sununu’s legal counsel. That led Hantz Marconi’s lawyers to contend that Formella could not be impartial, given that Sununu will be a key witness should the case go to trial.
During oral arguments on the matter earlier this month, state attorneys countered that Hantz Marconi was essentially asking for immunity from criminal proceedings.
In a ruling issued this week, Honigberg agreed with the state, writing that “the logical end of the defendant’s theory is that courts should disqualify the Attorney General from prosecuting any criminal case wherein a member of the executive branch would need to serve as a witness to bring a defendant to justice.”
Honigberg also said that legal theory is in conflict with the mandates of the Attorney General’s office and isn’t supported by legal precedent.
Defense attorney Richard Guerriero, who is part of Hantz Marconi’s legal team, said they “respectfully disagree” with the decision and “may appeal it at some point.” In the meantime, he said, they “will continue to fight the Attorney General's accusations on every lawful basis until Justice Hantz Marconi is vindicated.”
Hantz Marconi previously filed a separate motion seeking to dismiss the indictments, alleging that her conversation with Sununu was protected under judicial immunity, and that as a citizen, she has a First Amendment right to raise issues of concern with an elected official.
The court has not yet ruled on those motions.
A day after Hantz Marconi was indicted, her husband Geno Marconi was indicted by a Rockingham County grand jury for allegedly obtaining and disclosing confidential records involving Neil Levesque, who serves on the Pease Development Authority’s board of directors and is also the head of the Institute of Politics at Saint Anselm College. (The PDA board oversees the Division of Ports and Harbors, where Marconi has worked since 1995.)
Marconi allegedly shared those records with a co-defendant, Bradley Cook, who served alongside Marconi on a port advisory committee.
Geno Marconi is next scheduled to appear in court on Jan. 14 for a dispositional hearing. He, along with his wife, have entered "not guilty" pleas and are free on bail. Both are currently on administrative leave from their respective positions.
