Mazzaglia appeals murder convictionBy DAVE SOLOMON
New Hampshire Union Leader
January 12. 2016 8:29PM
CONCORD — Lawyers for convicted murderer Seth Mazzaglia filed their appeal of his conviction with the state Supreme Court, claiming the trial court erred by excluding evidence concerning the victim, Elizabeth Marriott.
That evidence is currently sealed by the court, which in an unusual move redacted the arguments made by Mazzaglia’s lawyer on appeal.
The 18-page brief released by the Supreme Court on Tuesday contains a lengthy summary of testimony in the trial, but the “questions presented” for the Supreme Court justices to consider on appeal are redacted, as are the arguments by defense attorney Christopher M. Johnson.
Other than the previously published facts of the case and trial testimony, the brief contains one statement: “Mr. Mazzaglia respectfully requests that this court reverse his murder conviction.”
The state has until March 11 to respond.
Johnson, chief appellate attorney in the state Office of Public Defender, would only say, “The brief is redacted by order of the court.”
Mazzaglia, 32, is serving life without parole for strangling and raping Marriott on Oct. 9, 2012, at his Dover apartment. A jury convicted him last June of first-degree murder, conspiracy to falsify physical evidence and conspiracy to commit tampering with witnesses.
Marriott was lured to the apartment by Mazzaglia’s live-in girlfriend, Kathryn McDonough, who is serving a one- to three-year prison sentence. Mazzaglia maintained throughout the trial that McDonough was the one actually responsible for the killing, saying she changed her story repeatedly during the investigation.
The defense maintains the jury in Mazzaglia’s 19-day trial should have heard other, undisclosed information about Marriott. The state Supreme Court remanded the case back to a Strafford County judge on Sept. 1 to rule on whether the sealed records in the case should remain under seal.
A hearing was held in October, after which the judge ruled the records and the content of the appeal must remain sealed.
In an earlier Supreme Court filing, Mazzaglia’s public defender listed eight possible grounds for appeal. “How many are in the redacted version, I don’t know,” said Supreme Court spokesman Carole Alfano. “They may have included only one, or all eight.”
Only the judges and attorneys involved in the case have seen the redacted material, she said. Foster’s Daily Democrat filed a motion to unseal documents in the case at the end of the trial, but the state objected, citing the upcoming appeal.
The first question to be raised on appeal, cited by Mazzaglia’s attorneys in their earlier filing, was “whether the trial court erred by excluding evidence concerning Elizabeth Marriott ... that was crucial to Mr. Mazzaglia’s defense.”
Mazzaglia’s lawyers argue that the state “opened the door” to admitting the evidence by “creating misleading inferences and heightened relevance during the trial.”
Other potential points of appeal include:
• Whether the trial court erred by failing to declare a mistrial after a witness, Roberta Gerkin, stated that the defendant was “prone to homicidal rages.”
• Whether the trial court erred by failing to declare a mistrial after McDonough testified that the defendant “had made prior homicidal threats.”
The defense lawyers also claim they were not alerted to testimony regarding Mazzaglia’s alleged statements in the process known as “discovery,” in which lawyers from both sides are required to share the evidence they will present.
An attorney with years of experience before the state Supreme Court described the redacting of the appeals brief as, “Unusual but perhaps understandable.”
“The redacted information was evidence the trial court did not permit,” he said. “It may be character assassination evidence that was not germane and whose prejudice outweighed any probative value. It would be self-defeating to make it public only for the Supreme Court to uphold its exclusion.”
Click below to view the appeal documents: