CONCORD — A judge is considering whether New Hampshire Attorney General John Formella and his staff should be blocked from prosecuting New Hampshire Supreme Court Associate Justice Anna Barbara Hantz Marconi. Her attorneys allege a conflict of interest due to the attorney general serving Gov. Chris Sununu, a key witness in her case.

Hantz Marconi, 68, a Stratham resident, has been charged in a high-profile case for allegedly interfering in the state’s criminal investigation into her husband, Geno Marconi, 73, the longtime New Hampshire Ports and Harbors director. Hantz Marconi has pleaded not guilty to two Class B felonies and five misdemeanor counts.

Merrimack County Superior Court Judge Martin Honigberg, who heard arguments from both sides Monday, will decide whether state prosecutors can try Hantz Marconi’s case or whether they should be replaced by outside counsel, in accordance with the defense’s request. 

Hantz Marconi is accused of speaking with both Sununu and Pease Development Authority board of directors chairperson Stephen Duprey to influence the criminal investigation into her husband, actions her defense argues are protected by the First Amendment and through judicial immunity. 

Hantz Marconi’s attorney makes case in court

Richard Guerriero, a lawyer for Hantz Marconi, filed a joint motion on Oct. 31 to dismiss the seven charges against her and disqualify the New Hampshire Attorney General’s Office from prosecuting the case. The attorney has claimed that Formella cannot be unbiased in the case as Sununu’s pick for state attorney general.

On Monday, Guerriero furthered the argument, saying in court the state should hire outside counsel to try Hantz Marconi’s case rather than existing state prosecutors. Guerriero said Formella previously served as legal counsel for Sununu, who he described as “the key witness in this case.”

“In the simplest terms, our position starts with the reality that every accused person is entitled to a prosecutor who is impartial, and that’s a constitutional right, as we’ve outlined in our proceedings and our pleadings,” Guerriero said.

The charges in Hantz Marconi’s indictment accuse her of telling Sununu the investigation into Geno Marconi was the result of “personal, petty and/or political biases.” The indictment further alleges she felt the investigation “needed to wrap up quickly because she was recused from important cases pending or imminently pending before the New Hampshire Supreme Court,” per the October charging documents. 

Past case filings from Guerriero state Hantz Marconi requested a meeting with Sununu through his staff, which was then allegedly held with the governor’s legal counsel present during regular business hours. Her attorney also states the meeting was approved by New Hampshire Supreme Court Chief Justice Gordon MacDonald.

More on Geno Marconi’s case: Details emerge in felony case bail hearing

“I don’t think we can ignore the fact that Attorney General Formella has a particularly close relationship … with this one very powerful public official,” Guerriero said. “His (Formella’s) personal interests are directly tied to this very powerful and important witness, and under that unique circumstance, not any other circumstance in this case, there is a limitation that’s not fair to the defense.”

Sununu appointed Formella to be the attorney general in 2021. Hantz Marconi was nominated to the New Hampshire Supreme Court by Sununu in 2017 and was sworn in by the governor in August the same year.

Honigberg, the presiding judge in Hantz Marconi’s case, took the matter under advisement and noted a decision on Guerriero’s motion to disqualify state prosecutors will be released at a future date.

Hantz Marconi and Guerriero both declined to speak to reporters after the Monday afternoon proceeding ended.

Attorney general’s prosecutors argue their side

Joe Fincham, assistant attorney general, and Dan Jimenez, senior assistant attorney general, are prosecuting Hantz Marconi’s case. They fought against Guerriero’s motion to disqualify their office from prosecution, stating their office is impartial in the case.

“At it’s heart, it was a motion that, in our estimation, basically demanded special treatment. Just like we would in any other case, we objected, because no one, justice or citizen, is entitled to special treatment in criminal prosecutions,” Fincham said after the motion hearing Monday.

Hantz Marconi remains free on bail

Hantz Marconi was charged with one count of attempting to commit improper influence and one count of criminal solicitation of improper influence, both felonies. She was also charged with 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, all Class A misdemeanors.

Hantz Marconi is free on personal recognizance bail.

Previously: NH Justice Hantz Marconi asks for charges to be dropped, cites First Amendment, immunity

Guerriero previously requested prosecutors compile a bill of particulars of all her alleged criminal activity if all the charges against her are not dismissed. 

Hantz Marconi was charged before her husband, Geno Marconi

The New Hampshire Attorney General’s Office announced on Oct. 16 that a Merrimack County Superior Court grand jury indicted Hantz Marconi on the seven charges. A day later, a Rockingham County grand jury’s charges against Geno Marconi were released. 

Geno Marconi was charged with two Class B felony counts for allegedly tampering with witnesses and informants and falsifying physical evidence. He was also hit with four Class A misdemeanors – two counts of Driver Privacy Act violations and two counts of obstructing government administration.

The state’s port director appeared in Rockingham County Superior Court last week, pleading not guilty to six state charges. A county judge approved conditions calling for Geno Marconi to be free on personal recognizance bail and a no-contact order preventing him from discussing the facts of the case with all staff of the Pease Development Authority and the agency’s board of directors.

The criminal charges against the Stratham couple were preceded by both Marconis being placed on leave from their respective positions. 

Hantz Marconi, the third woman to sit on the state’s high court, has been on paid administrative leave from the state Supreme Court since July 25. The order regarding her leave was extended by the remaining Supreme Court justices in mid-October.

In April, Geno Marconi was placed on paid leave from his position, which is overseen by the Pease Development Authority.