CONCORD — Indicted state Supreme Court Justice Anna Barbara Hantz Marconi’s lawyer filed a motion late Thursday afternoon seeking to disqualify Attorney General John Formella and all of the lawyers in his office from her case due to “conflicts” and to dismiss all indictments against her.
Attorney Richard Guerriero filed the motion accusing Formella of violating the Rules of Professional Conduct by representing Gov. Chris Sununu, “the star witness” in the case against Hantz Marconi, and acting as the state’s chief prosecutor in her criminal case at the same time.
Formella owes a lot to the governor, having worked as an attorney for Sununu and his businesses, worked on Sununu’s political campaigns and has said himself he has a lawyer-client relationship with Sununu, Guerriero said.
“By all accounts including his own Attorney General, Formella is and has been for years Gov. Chris Sununu’s lawyer,” Guerriero wrote. At the same time, in the role of public prosecutor representing the people of the state of New Hampshire, Formella has brought criminal charges against Hantz Marconi, a conflict of interest, he said.
“Formella cannot be an impartial and fair prosecutor in these circumstances,” Guerriero said.
“When a prosecutor in a criminal case represents a key witness in other matters the prosecutor has a conflict of interest. He cannot prosecute the criminal case on behalf of the People of the state because he is limited by his duties of loyalty and confidentiality, to his client — the witness.”
And when the prosecutor is the chief prosecutor in an office with mandated duties to direct and supervise his subordinate attorneys, the entire office must be disqualified, he wrote.
“Every accused person has a constitutional right to a prosecutor who evaluates allegations fairly and impartially and only files charges which are justified. When prosecutors act in spite of conflicting loyalties, they do a disservice to the people and violate the rights of the accused,” Guerriero wrote, “especially when they are taking actions as consequential as indicting a sitting Supreme Court justice.”
Formella and his subordinate attorneys should not have been handling this matter before the grand jury and should not be prosecuting it now, Guerriero said. “The Attorney General’s Office should be disqualified and all of the indictments dismissed,” he wrote.
Before Sununu nominated Formella to be Attorney General, Formella worked as a private attorney handling legal matters for the governor and his family.
“Furthermore the Attorney General worked on the governor’s political campaign, served on his transition team and then went on to serve as Sununu’s legal counsel,” he said.
In 2021 Sununu nominated Formella for Attorney General and he was confirmed by the Executive Council.
“The attorney general claims that Justice Hantz Marconi committed crimes by meeting with Gov. Sununu expressing her opinion that an Attorney General investigation of her husband (Geno Marconi) was baseless, and telling the governor that the investigation was causing her recusal from many cases at the Supreme Court,” wrote Guerriero..
“Without a doubt, Governor Sununu is the single most important witness for Attorney General Formella regarding these charges.”
After the indictments were announced, Sununu told WMUR that “he really appreciates the attorney general” and “that he’s done a phenomenal job.”
“To say the least, Formella’s career and success have been tied to his support of Sununu,” Guerriero said.
Considering the one-sided nature of the Grand Jury proceeding, the prosecution’s control of the process and a defendant’s right to a conflict-free prosecutor there is unfair prejudice in this case warranting dismissal, Guerriero said.
Sununu declined to answer any questions related to the June 6 meeting he had with Hantz Marconi, citing the pending court case, and said he was not even sure if he would be called to testify in any trial.
Formella’s spokesman Mike Garrity said Thursday: “We will respond as appropriate in court.”
Hantz Marconi was placed on administrative leave by the Court on July 25.
On Oct. 16, Attorney General Formella announced indictments against Hantz Marconi relative to that conversation with Sununu and another she allegedly had with Steve Duprey, Sununu’s appointee as chairman of the Pease Development Authority.
Her husband Geno Marconi, the suspended director of the Division of Ports and Harbors, was indicted for tampering with witnesses and informants by purposely retaliating against a witness by allegedly releasing confidential motor vehicle records.
The witness in question is believed to be Neil Levesque, the vice chairman of the Pease Development Authority
Geno Marconi was also indicted for allegedly falsifying physical evidence by deleting a voicemail/and or voicemails from a phone on April 22.
Bradley Cook of Hampton, the chairman of the Division of Ports and Harbors Advisory Council, was indicted for perjury and false swearing. The felony charge alleges Cook made a false material statement while testifying before a grand jury Sept. 4 that he did not communicate with/and or receive materials from Geno Marconi relating to Levesque’s pier permit.
Hantz Marconi is scheduled to be arraigned in Merrimack County Superior Court on Nov. 21. Geno Marconi and Bradley Cook are set to be arraigned Nov. 27 in Rockingham County Superior Court.
This article first appeared on InDepthNH.org and is republished here under a Creative Commons license.