State of NH v. Anna Barbara Hantz Marconi

Case No. 217-2024-CR-01167

STATE’S RESPONSE TO JUDICIAL BRANCH’S MOTION TO CLARIFY SUBPOENAS

NOW COMES the State of New Hampshire, by and through its attorneys, the Office of the Attorney General, and responds to the Motion to Clarify Subpoenas (“the Motion”) filed by the New Hampshire Judicial Branch (“the Judicial Branch”) as follows:

1. In the Motion, the Judicial Branch “submit[ted] that a ruling from this [C]ourt is necessary to determine whether (1) the court agrees that the law [cited by the Judicial Branch] governs whether any subpoenaed judge may testify as a matter of law, [and] (2) whether any testimony sought by either party would satisfy this test.” Motion at ¶ 18.

2. To the extent that the Motion offers an advisory opinion to this Court about how it should regulate trial testimony in this matter, or seeks an advisory opinion from this Court, such an offer or solicitation is unconstitutional. See Opinion of the Justices, 167 N.H. 539, 541 -42

(2015) (quotations and citations omitted) (Part II, Article 74 authorizes only the New Hampshire Supreme Court to issue advisory opinions, and only “when asked to do so by the legislature or the Governor and Council;” such an advisor y opinion “is not an opinion of the court in a litigated case;” advisory opinions “do[] not include answering legal questions that require resolving questions of fact.”); Piper v. Meredith, 109 N.H. 328, 330 (1969) (superior court has no jurisdiction to give advisory opinions).

3. This Court has accordingly docketed the hearing on the Motion as a motion to quash, and the State infers based on the law cited above that this is because the only constitutional means by which the Judicial Branch could have inserted itself into these proc eedings was in seeking to quash these subpoenas (and not by trying to otherwise invade the province of this Court to act as the Judicial Branch in this case). Accordingly, the State responds to the Motion to the extent that it seeks to quash the subpoena issued by the State to Chief Justice MacDonald and the subpoenas issued by Defendant to Associate Justices Bassett, Donovan, and Countway.

4. There are three relevant categories for judges as potential witnesses: (1) a judge being asked about why he or she ruled or otherwise took an official action (“deliberating judge”);

(2) a judge being asked about matters that occurred in their presence while presiding over a matter (“presiding judge”); and (3) an otherwise ordinary fact witness who happens to be employed as a judge (“fact witness”).

5. The first category – a deliberating judge – is covered by judicial deliberative privilege. See State ex rel. Childs v. Hayward, 109 N.H. 228, 230 (1968) (“a judge may not be compelled to testify concerning the mental processes used in formulating official judgments or the reasons that motivated him in the performance of his official duties”). Claims of privilege must be asserted “as each question is propounded.” State v. Bell, 112 N.H. 444, 448 (1972). The only circumstances in which a trial court should “dispense with the usual procedure” and “instead allow a blanket assertion of privilege” (such as a motion to quash) is after it “clearly appears that there is no relevant nonprivilged testimony which the witness can offer, where... the witness is called to testify only on limited issues.” Id.

6. The second category – the presiding judge – is covered by a personal privilege, which the judge (as opposed to the Judicial Branch) may assert or waive individually. See Hale v.

Wyatt, 78 N.H. 214, 215 -16 (1916). Generally, judges may only be compelled to testify as a presiding judge when “not presiding over courts of record... when no record [is] made” about “what evidence was presented before them.” Hayward, 109 N.H. at 230. See also United States v.

Roth, 332 F.Supp.2d 565, 566-69 (S.D.N.Y. 2004); United States v. Frankenthal, 582 F.2d 1102, 1107 (7th Cir. 1978). In these circumstances, the trial court “has ample power to confine questioning only to what is necessary to establish the evidence presented [to the testifying presiding judge] under oath in addition to that contain ed in the affidavit.” Hayward, 109 N.H. at 230.

7. The third category – a fact witness – is governed by the “fundamental maxim that the public has a right to every man’s evidence.” In re Grand Jury Subpoena, 155 N.H. 557, 562

(2007) (quotation omitted). This means beginning “with the... assumption that there is a general duty to give what testimony one is capable of giving, and that any exemptions which may exist are distinctly exceptional.” Id. (quotations omitted). Accordingly, the testimony of a judge in this context is treated the same as any other potential witness, with no more or less rights or privileges that are not available to any other potential witness, and with no cognizable interest of the Judicial Branch to intervene to attempt to thwart such testimony independent of this Court’s duty to conduct an orderly trial in accordance with all applicable rules.

Motion to Quash Justice Ogden’s Subpoena Should Be Denied

8. Superior Court Justice Ogden is a percipient witness exclusively about events that occurred in his capacity as Governor’s Counsel, and he has not presided (and is not presiding) over this matter. Accordingly, no judicial privilege is implicated by his testimony, and to the extent the Motion seeks to quash his subpoena based on his status as a justice of the superior court, such request should be denied.

Motion to Quash Chief Justice MacDonald’s Subpoena Should Be Denied

9. The State has subpoenaed Chief Justice MacDonald to testify under the third category – as a fact witness. Chief Justice MacDonald is a unique fact witness in the State’s case based on his potential testimony as a percipient witness independent of his judicial duties, and precluding the Chief Justice’s testimony in this matter by granting the Judicial Branch’s motion to quash would severely limit the evidence available to the jury and prejudice the State’s case. The Chief Justice’s testimony is required because he possesses factual knowledge of his conversations with Defendant and his knowledge of events and other facts and circumstances surrounding Defendant’s criminal conduct that have been previously disclosed to this Court, his knowledge is highly pertinent to the jury’s task of determining whether Defendant committed the crimes charged, and the Chief Justice is the only known source of this material information. The testimony the State seeks from the Chief Justice is unre lated to a particular case befo re the New Hampshire Supreme Court, and such testimony would not implicate his judicial deliberative privilege because his testimony would not concern his mental impressions of any matter before the court or his mental processes in formulating judicial decisions. See In re C.M., 166 N.H. 764, 778 (2014). Accordingly, the Motion should be denied as to the State’s subpoena of Chief Justice MacDonald.

Defendant Must Proffer Basis for Subpoenas to Other Justices

10. The State is unaware of the basis for Defendant’s subpoenas of the other three justices. In response to inquiries by the State, former counsel for the Judicial Branch told the State that, unlike Chief Justice MacDonald, these three justices had no information whatsoever relating to Defendant’s criminal charges to offer. See also Motion at ¶ 23 (“[Former Judicial Branch Counsel] is not aware of any particular need for factual testimony from the three remaining sitting justices.”). The State has received no statements from these three justices as discovery from Defendant and has no reason to believe such statements exist. See N.H. R. Crim. P. 12(b)(4).

Defendant speculates, without evidence or proffer, that the other three justices “may not share the Chief Justice’s views,” and thus advances the theory of their relevance and necessity as trial witnesses based on nothing more but conjecture. Defendant’s Response to New Hampshire Judicial Branch Motion to Clarify Subpoena s at ¶ 46 (emphasis added). Defendant also claims that the “doctrine of completeness” requires the other three justices to testify about their reactions to the conversation between then -Governor Sununu and Chief Justice MacDonald, but the reactions of these three justices are not “the remainder of [the] conversation” between Sununu and MacDonald. Id. at ¶ 47. The State is thus unable to determine whether these subpoenas should be quashed because the State does not know whether and to what extent the poten tial testimony of any or all of these justices: (1) is covered by an applicable privilege; and/or (2) otherwise meets the requirements of the New Hampshire Rules of Evidence, including but not limited to Rules 104, 401, 402, 403, and 602. Accordingly, until Defendant proffers the basis for the subpoenas to these three justices based on what admissible evidence they have to provide, the State is unable to take a position (and this Court is unable to intelligently rule) on the Motion by the Judicial Branch t o quash the subpoenas for these three justices.

WHEREFORE, the State respectfully requests that this Honorable Court: (A) Deny the Motion to Quash the subpoenas issued to Chief Justice MacDonald and Justice Ogden; (B) Require Defendant to proffer the basis for the testimony of Justices Bassett, Donovan, and Countway in order to determine whether those subpoenas should be quashed and then make appropriate rulings; and (D) Grant such further relief as may be deemed just and proper.

Respectfully submitted,

THE STATE OF NEW HAMPSHIRE

JOHN M. FORMELLA

ATTORNEY GENERAL

Date: August 22, 2025 /s/ Joe M. Fincham II Joe M. Fincham II, Bar #273596 Assistant Attorney General Criminal Justice Bureau New Hampshire Department of Justice 1 Granite Place South Concord, NH 03301

(603) 271-3671 joe.m.finchamii@doj.nh.gov

/s/ Dan A. Jiménez Dan A. Jiménez, Bar #273604 Senior Assistant Attorney General Criminal Justice Bureau New Hampshire Department of Justice 1 Granite Place South Concord, NH 03301

(603) 271-3671

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing was sent via the Court’s e-filing system to counsel of record.

/s/ Joe M. Fincham II Joe M. Fincham II