NH state prosecutor: Mazzaglia's friends 'did nothing criminal'
DOVER - A state prosecutor said he had no reason to seek legal action against two witnesses who testified during last month's trial of convicted murderer Seth Mazzaglia despite them not calling for help - to police or medical services - after seeing the body of strangled University of New Hampshire student Elizabeth "Lizzi" Marriott on the night of her death in October 2012.
"They did nothing criminal," Assistant Attorney General Geoffrey Ward said, referring to Rochester residents Roberta Gerkin and Paul Hickok, who testified as state witnesses during Mazzaglia's trial. "If there's no criminal charge that fits their activities that night, then there's no recourse that we have."
Ward spoke outside of Strafford County Superior Court in Dover, after a Wednesday status conference at which Judge Steven Houran scheduled Mazzaglia's sentencing for Aug. 14.
Mazzaglia, 31, was convicted June 27 of murdering Marriott on Oct. 9, 2012, in the Dover apartment he shared with his former girlfriend, Kathryn McDonough.
Gerkin and Hickok testified that they went to the apartment after McDonough called Gerkin, a friend of Mazzaglia's, and asked for help.
Gerkin testified June 2 that Mazzaglia assured her that night that he would call for help, and she believed him.
"I was an optimist," Gerkin said on the stand. "I like to believe, but not anymore, that people will do the right thing if given an opportunity."
Hickok also said, in testimony June 18, that he and Gerkin, before leaving the apartment, urged Mazzaglia to call for help.
Ward asked Hickok why he didn't call for help himself that night, the next day or the day after.
"The biggest reason that we didn't do anything was to give (Mazzaglia) the opportunity to do it himself," Hickok said on the stand.
Michael Ramsdell, former head of the homicide unit in the state Attorney General's Office and now a criminal defense and business litigation lawyer in private practice, said Friday that, except for certain exceptions, "you don't have the duty to report a crime if you believe one has been committed."
He said exceptions include emergency room doctors treating a child who appears to have been the victim of a crime or guardians of people who are mentally incapacitated.
"Unless there's a special duty . there is no legal obligation to report a crime," Ramsdell said.
University of New Hampshire law Professor Albert "Buzz" Scherr said Friday that in scenarios involving witnesses to a murder scene, the three "most likely potential consequences" would be charges of acting as an accomplice, hindering apprehension or "unsworn falsification," meaning lying to officers.
"None of those really work in this circumstance," Scherr said. "Simply seeing the body would not be enough."
Scherr said he's taught at the UNH law school for 20 years and, prior to that, was a public defender in New Hampshire for 13 years. He said that from what he read of Mazzaglia's trial, it didn't sound like Gerkin or Hickok took any active measures to assist Mazzaglia or mislead police.
"Simply not reporting anything, while morally questionable, doesn't get them into any trouble," Scherr said.
He cited another point surrounding Mazzaglia's conviction.
"I think the thing that sticks in my mind about the trial is what a very attractive plea bargain (Kathryn) McDonough got," Scherr said.McDonough is serving a 1½- to three-year prison term after pleading guilty in July 2013 to charges that included witness tampering and hindering the investigation, as part of a plea agreement. She testified that she helped cover up Mazzaglia's murder and rape of Marriott."Given her role in what happened . her lawyer negotiated a very, very favorable plea bargain for her," Scherr said.
Hampton attorney Andrew Cotrupi, McDonough's lawyer, responded to that statement Friday.
"I know many people think Kathryn McDonough got too good a deal, but she is a felon, has gone to prison and will live with her share of the responsibility for what happened to Lizzi Marriott for the rest of her life," Cotrupi said.
Three guilty verdicts
After a trial that spanned nearly all of June, a jury found Mazzaglia guilty of two charges of first-degree murder, one for purposely strangling Marriott and the other for committing an act of violent sexual assault on her body before, after or while killing her.
Mazzaglia faces an automatic sentence of life without parole on the first-degree murder conviction. He also was found guilty of conspiracy of falsifying physical evidence and conspiracy to commit tampering with witnesses.
Lizzi Marriott died on Oct. 9, 2012. She worked at a Target store in Greenland with McDonough, who testified that Marriott played a game of strip poker with the couple at their apartment, but rebuffed sexual advances by Mazzaglia before he strangled her from behind with a cotton rope.
McDonough testified that Mazzaglia then raped Marriott's limp body, which the couple dumped in waters off Peirce Island in Portsmouth. Marriott's body hasn't been found.