Prosecutors can keep handling their case against N.H. Supreme Court justice, judge rules – The Boston Globe

“Unlike private attorneys, government attorneys are presumptively entrusted to be impartial unless a defendant can demonstrate actual bias,” Honigberg wrote.

Hantz Marconi, 68, is accused of trying to interfere with a criminal investigation into her husband, Geno J. Marconi, 73, the long-serving director of the New Hampshire Port Authority. She faces felony and misdemeanor charges for a conversation she had with Governor Christopher T. Sununu on June 6, when she allegedly said the investigation into her husband was meritless and needed to wrap up quickly.

Although she argues the meeting was entirely above-board, Hantz Marconi was indicted on felony charges of attempting to commit improper influence and criminal solicitation of improper influence. She was also charged with making an inappropriate request in April of the chairperson for the Pease Development Authority, which oversees the port authority.

Her husband has been indicted on charges of felony witness tampering and obstructing government administration. He’s accused of providing confidential motor vehicle records about one person to another in early April. He’s also facing misdemeanor charges that he falsified physical evidence and obstructed government administration in late April by deleting one or more voicemails.

After her indictment, Hantz Marconi’s attorneys argued that Formella could not be an impartial prosecutor, given his closeness to Sununu, a “very powerful and important witness” in this case. They argued Formella has conflicts stemming from his current official duties and from his prior roles representing Sununu in his personal capacity. They asked the court to either dismiss all the charges or have a special prosecutor appointed.

Honigberg, however, rejected their argument with a 15-page order highlighting material differences between past cases and the one at hand.

“Under the Supreme Court’s precedents, a defendant must do more than speculate about a potential conflict but rather demonstrate that one is likely to occur,” he wrote, noting that Hantz Marconi will be able to present evidence in the future if she discovers “that she has suffered harm from an actual, not speculative conflict.”

Honigberg wrote that Hantz Marconi’s attorneys had advanced a legal theory that would effectively have courts disqualify the New Hampshire Attorney General’s Office from prosecuting any criminal case in which a member of the state’s executive branch would need to serve as a witness. That theory “runs counter to the statutory duties imposed on the Attorney General and is not supported by the Supreme Court’s precedents,” he wrote.

In a statement, Hantz Marconi’s defense attorneys — Richard Guerriero, Jonathan Kotlier, and Oliver Bloom — said they disagree with Honigberg’s decision and could appeal it at some point in the future.

“However, this was a preliminary issue arising in the earliest stages of the case,” they said. “Rest assured, we will continue to fight the Attorney General’s accusations on every lawful basis until Justice Hantz Marconi is vindicated.”

In fact, the defense team has already queued up Hantz Marconi’s next gambit to have her indictment dismissed in its entirety. In a filing on Nov. 8, her attorneys introduced an alternative argument that her alleged conduct was protected by the First Amendment, the constitutional right of redress, and judicial immunity.

Honigberg wrote in his order on Tuesday that he anticipates the prosecutors will file a response to the Nov. 8 motion within the next 15 days.

A spokesperson for the attorney general’s office did not immediately respond Wednesday to a request for comment on Honigberg’s order.

Hantz Marconi, who was appointed by Sununu to the state’s highest court in 2017, faces up to three and a half years to seven years in state prison for each of the two felony charges. She also faces up to 12 months in jail for each of five misdemeanors.

Speaking to reporters Wednesday afternoon, Sununu pushed back on recent news coverage and said Formella has handled these cases independently.

“John Formella goes to the nth degree to ensure firewalls are in place, what is transmitted between the Justice Department and either my office or legislators, elected officials, or the public is always above board,” he said. “That’s the best part of John Formella.”

Sununu said he thinks a recent report by New Hampshire Public Radio was “complete garbage.” The report, which noted that Sununu met with Formella and members of the Pease Development Authority board on April 16, said the closed-door gathering “raises new questions about the role Sununu played in Marconi’s removal from office and the ensuing criminal charges.”

Sununu countered that the April 16 meeting was when Formella “let us know” that an investigation into Marconi was underway. He said he has respected Formella’s independence throughout the process.

“I keep myself very apart from things, especially in the attorney general’s office. I respect the attorney general’s role,” Sununu said.

“To this day, you know what I know about those indictments? Exactly what you have read in the indictments,” he added. “I read them on the same day you read them with the public. I didn’t get a heads up on any of this because it doesn’t concern me.”

The potential witnesses in Marconi’s case include members of the Pease Development Authority board, staffers with the New Hampshire Division of Ports and Harbors, and Bradley J. Cook of Hampton, who was also indicted on felony perjury and misdemeanor false swearing charges, according to court records.

Cook, 73, allegedly testified before a grand jury in September that he hadn’t communicated with Marconi or received any materials from Marconi related to a pier use permit for “N.L.,” when in fact he had, according to the indictments.

One of the potential witnesses is Neil Levesque, vice-chairman of the Pease Development Authority board and executive director of the New Hampshire Institute of Politics at Saint Anselm College.

Details are sparse in the charging documents, so it’s still unclear what exactly sparked Marconi’s alleged misconduct and the subsequent investigation. He has been on administrative leave since April, and Justice Hantz Marconi has been on administrative leave since July. Their attorneys contend they are innocent.

Steven Porter can be reached at steven.porter@globe.com. Follow him @reporterporter. Amanda Gokee can be reached at amanda.gokee@globe.com. Follow her @amanda_gokee.