Kathryn McDonough is cross examined by defense attorney Joachim Barth about her plea deal with the state in Strafford Superior Court in Dover Tuesday during the trial of Seth Mazzaglia, who is accused of killing University of New Hampshire student Elizabeth (Lizzy) Marriott. (Pool Photo by John Huff/Foster's Daily Democrat)
UPDATED: Phone call about marriage plans between Mazzaglia, ex-girlfriend McDonough played in court
DOVER – The voice of accused murderer Seth Mazzaglia was heard at length for the first time in his ongoing trial Tuesday, as lawyers played a tape of him as he talked casually and lovingly with his former live-in girlfriend about marriage plans in a December 2012 phone call, while he was in jail.
“We can figure it out, and I say let’s do it. I’m all for that,” Mazzaglia, referring to marriage, said to Kathryn “Kat” McDonough in a recording of the call played by his defense. “I think that would be very important for us. I’m glad you approached me about that. I’ve certainly been trying to figure out how to approach you.”
Mazzaglia expressed encouragement to McDonough about their chances at a future together.
“We are a couple who can find a way – we are the aberration,” Mazzaglia said. “We may have to set some records here, but we are the aberration.”
Mazzaglia, 31, faces first- and second-degree murder charges in the Oct. 9, 2012, death of 19-year-old UNH student Elizabeth “Lizzi” Marriott, who was from Westborough, Mass. According to testimony, she died after a game of strip poker in the Dover apartment that Mazzaglia and McDonough shared.
McDonough, 20, testified last week that she was sitting next to Marriott when Mazzaglia began strangling Marriott with a white cotton rope. McDonough said Marriott had declined to participate in any sexual activities with her or Mazzaglia, and that after Mazzaglia choked Marriott, he raped her limp body for several minutes while fondling and insulting her.
In the trial’s opening statements May 28, Barth told jurors it was McDonough, not Mazzaglia, who killed Marriott that night, during violent sexual activity.
Mazzaglia’s voice was much clearer than McDonough’s in the recording of their conversation on Dec. 6, 2012, which played in a hushed courtroom Tuesday morning at Strafford County Superior Court.
Despite the sometimes-muddled audio, no feelings of animosity between the two were evident in their friendly, tender conversation. Mazzaglia sounded light-hearted as he and McDonough discussed logistics of setting up joint bank accounts, filing for marriage and even, Mazzaglia said, “eventually going into business together.”
Mazzaglia expressed optimism about the potential length of his incarceration and its affect on his identification information and accounts.
“Depending on when I get out of here, if it’s two years or under, my driver’s license is still good…but if it’s over four years…suddenly I start having problems,” he said.
Mazzaglia also told McDonough he’d “been trying to figure out what the policy of marriage while someone’s in jail is,” spoke about his desire for “having a real ceremony” and said: “I envision myself getting a ring and doing this all proper, but at the same time…”
Mazzaglia said legal forms were frustrating in that regard.
“It drives me nuts whenever they ask ‘what’s your marital status,’” he said. “I keep wanting to say ‘married, and this is my wife.’”
As McDonough talked about what she had learned about filing for marriage with someone in jail, she seemed to say in the muddled audio that some forms required a reason for marriage.
“I would hope ‘madly in love’ would count,” Mazzaglia replied.
At times, Mazzaglia spoke about concerns that could be familiar to many hopeful grooms, saying he had been thinking of proposing for some time but had been hesitant.
“I didn’t know how you’d react,” he said. “I figured there’d be a positive reaction, but….
“If I’d seen this on the horizon, I’d have already done it, just so we could have that between us,” he continued, presumably referring to his arrest.
The two spoke on friendly terms throughout the conversation, with no disagreements, raised voices or arguments.
“It’s scary how on the same wavelength we get sometimes,” Mazzaglia said at one point, as McDonough laughed. “I like it. It’s nice to know we think alike.”
McDonough is serving a 1½- to three-year prison term after pleading guilty last July to charges including witness tampering and hindering the investigation. She has testified that she helped cover up the murder and rape of Marriott, whose body has never been found.
Only near the end of their conversation did feelings of sorrow and resignation appear to arise.
“I love you,” McDonough said at the end of the call, shortly after an automated jail recording broke in and said the call would be cut off in one minute.
“I love you, too,” Mazzaglia replied. “Always and forever.”
Defense attorney Joachim Barth spent the remainder of Tuesday morning questioning McDonough on themes he has raised throughout his cross examination: her admitted lies to investigators and others, her statements to a grand jury in the winter of 2012-13, and whether the truth of those statements was influenced by McDonough's actions to reach a plea agreement.
The terms of her plea agreement require McDonough to speak truthfully in court and meet other parole conditions in exchange for a significantly shortened prison term and immunity from having her testimony lead to other charges related to Marriott’s death.
As of Tuesday's lunch break, Barth’s cross examination of McDonough had not yet focused on what occurred in the Sawyer Mills studio on the night of Marriott’s death. McDonough gave her version of those events to prosecutors last week, in highly emotional testimony.
Barth indicated in court Tuesday morning that his questioning will return to that night Tuesday afternoon.