Judge Told Why AG Formella Must Testify At Hantz Marconi's Trial And Why The State Says No

By Nancy West, InDepth NH

CONCORD, NH — State Supreme Court Justice Anna Barbara Hantz Marconi's lawyer renewed his motion to disqualify Attorney General John Formella from the case and dismiss the charges against her Tuesday at a motions hearing focusing on Formella in Merrimack County Superior Court.

Attorney Richard Guerriero said he renewed the motion to dismiss because of information received in February and May about the conversation between then-Gov. Chris Sununu, the key witness in the case against Hantz Marconi, and Formella that appears to have been the beginning of the criminal investigation against her.

Assistant Attorney General Joe Fincham argued why he filed the motion to quash the subpoena to testify served on Formella. Fincham said Formella has nothing unique and relevant to testify about in the matter. If Judge Martin Honigberg disagrees, then the Deputy Attorney General should take over the prosecution, he said.

Guerriero said Formella was acting as both Sununu's lawyer and representing the state of New Hampshire as the prosecutor, serving two masters and that is not allowed.

"I think that the key witness was (Formella's) client and he was dealing with him as a witness and also dealing with him as a client and that's the first instance of something that should not have happened," Guerriero said.

The chief prosecuting attorney in this case and the key witness Gov. Sununu are both going to be witnesses so you have an attorney and client as witnesses in the same trial creating a conflict of interest, Guerriero said.

"My goal...is to show the court how the conflict of interest has colored the investigation and prosecution of this case from the beginning," Guerriero said. "We start with the very first moments of this case when in a conversation about something else between Gov. Sununu and Attorney General Formella, Gov. Sununu said 'incidentally Justice Hantz Marconi came to see me,'" Guerriero said.

That appears to be how this case started, he said, adding that Formella made himself a witness by then interviewing Sununu and his then-legal counsel Rudy Ogden, who sat in on the June 6, 2024 meeting between Sununu and Hantz Marconi that is at the heart of the criminal charges against her.

"What happened in that moment is very important as it is the genesis of conflict..," Guerriero said. Formella should have instead brought in an investigator instead of interviewing them himself, he said.

Hantz Marconi was indicted for allegedly trying to improperly influence a criminal investigation into her husband, state Ports Director Geno Marconi, 73, by meeting with Sununu, and speaking separately with Stephen Duprey, chairman of the Pease Development Authority, which oversees the state Division of Ports and Harbors.

Hantz Marconi's November trial is expected to include testimony from top state officials including Formella, Sununu, Duprey, state Supreme Court Chief Justice Gordon MacDonald, the three remaining members of the state Supreme Court, and Rudy Ogden, who Sununu appointed to the Superior Court before he left office, among others.

Geno Marconi, 73, was indicted for allegedly falsifying physical evidence by deleting a voicemail/and or voicemails from a phone on April 22, 2024. He was also indicted for allegedly retaliating against PDA Board Vice Chairman Neil Levesque by providing confidential motor vehicle records pertaining to Levesque to Bradley Cook, in violation of the Driver Privacy Act.

Hantz Marconi and her husband have both pleaded not guilty and have both been on paid leave.

Hantz Marconi told Sununu at the June 6, 2024 meeting, that Formella’s investigation into her husband was “petty” and politically motivated. Court records state that Sununu and Ogden both told investigators Hantz Marconi did nothing illegal during the meeting.

Guerriero said the defense must be able to call Formella, arguing against quashing the subpoena for him to testify.

"There's nobody else we could call as a witness. There's no recording we can use. There's no way to get to the genesis of this case without calling Attorney General Formella," Guerriero said.

The conversation between Formella and Sununu is critical.

"Somehow Sununu said, 'I didn't perceive anything illegal. I didn't see anything wrong...She didn't even imply.' So somehow out of that phone conversation between Formella and Sununu, this case started, and didn't start according to the Public Integrity Unit's normal policy. As far as we know from discovery, nobody's ever made a complaint about this matter to the Attorney General's Office so it had to be that the Attorney General himself either knows how it got started or was the person who initiated it," Guerriero said.

Fincham said the state was asked to record the grand jury that indicted Hantz Marconi, but didn't do so. He said it is unusual to record a grand jury proceeding.

"We do not record grand juries just because someone thinks they are a special person entitled to special treatment. That's how we got here in the first place," Fincham said.

Also Fincham said it's not necessary for Formella to testify because he doesn't have unique information that can't be obtained elsewhere. Formella did receive the initial disclosure from Sununu and Ogden and what he would be able to say is then the investigation happened, Fincham said.

With respect to the origins of the investigation, his potential testimony would be limited to, "I had a conversation and the investigation followed," Fincham said. "I do not see unique relevant information that would create a conflict or even create a witness issue. (Formella) has nothing to offer of substance."

If the judge disagrees and views Formella as a witness, then legally the Deputy Attorney General would step in. "The proper remedy is to have the Deputy Attorney General act as the Attorney General," Fincham said.

Guerriero said the defense position if the Deputy Attorney General were to step in would be for the charges against Hantz Marconi to be dismissed and the whole process would have to begin again, starting with a new grand jury.

Honigberg cleared the courtroom of everyone except the parties in the case at one point to hear motions about sealed records that haven't been made public in the case. Court spokesman Av Harris said they involved grand jury testimony.

This article first appeared on InDepthNH.org and is republished here under a Creative Commons license.