A month after the state Supreme Court ordered Lizzi Marriott’s private sexual history to remain sealed, her convicted killer has again raised the issue of what information is fair game in open court.
Seth Mazzaglia’s attorney, Christopher Johnson, recently renewed his motion for unrestricted oral arguments, which are scheduled to take place in just two weeks. He said in a phone interview Wednesday that attorneys should not have to self-censor their remarks, and that doing so would cripple his ability to argue issues central to the appeal.
“My position was, and remains, that an oral argument is a very significant opportunity for the lawyers to communicate with the court. . . . By oral arguments being open, I understood that to mean I’d be able to say whatever I needed to advocate my position,” Johnson said of the court’s Sept. 29 order, which maintained the seal on Marriott’s records.
Johnson was quoted in published reports about the high court’s decision that same day, in which he expressed a similar opinion. His remarks caught the eye of the Marriott family’s attorney, Rus Rilee, who had fought for months to keep the 19-year-old’s private sexual history out of the public domain.
Rilee said Wednesday he felt compelled to bring the matter to the court’s attention, and did so by filing a motion for clarification. He said he wanted to ensure “there wasn’t an Eleventh hour surprise” that would cause undo harm to the Marriott family.
“Thank God, I did,” he said. “It seems like this issue keeps coming up over and over again . . . and, frankly, all it’s doing is re-traumatizing the victims. How many times does the court have to rule that the information is sealed?”
Mazzaglia was sentenced to life in prison without parole in 2014 for strangling and murdering Marriott, a University of New Hampshire student. He has since questioned whether a Strafford County Superior Court judge erred in ruling twice that Marriott’s prior sexual history was inadmissible at trial under the state’s rape shield protections.
Rape shield laws exist in every state and limit or prohibit a defendant’s ability to introduce evidence about a victim’s sexual history to undermine his or her credibility.
The Supreme Court stunned victims advocates earlier this year when it adopted an administrative rule change allowing appellate justices to open records previously sealed by the lower courts. The law was applied to the Mazzaglia case retroactively, although the records were never released.
At the request of the state attorney general’s office, more than a dozen local and national advocacy groups, and the Marriott family, the court reversed its controversial ruling Sept. 29. In that same order, the justices said oral arguments on Mazzaglia’s direct appeal would be held in open court.
But attorneys in the case remain at odds over what the justices meant by “open court.”
The justices, prompted by Rilee’s motion for clarification, issued a follow-up order Oct. 14 to address the issue. They say they expect attorneys to act “in good faith” and to argue their points in such a way that the sealed information is protected from public disclosure.
Johnson unsuccessfully asked the justices to reconsider that decision. His fight, though, continues.
He has renewed his motion for unrestricted argument, saying prosecutors recently mischaracterized Mazzaglia’s appeal in October filings, and that if the court relied on those misstatements at any time, it needs to revisit the matter.
If the justices uphold their decision to restrict oral arguments, Johnson said he wants a closed courtroom so details key to Mazzaglia’s appeal can be aired.
Rilee previously proposed a similar solution, but at that time Johnson objected. Johnson said Wednesday that it’s not his first choice, but that he would agree to those terms.
Assistant Attorney General Geoffrey W.R. Ward argued in his latest filing Tuesday that the defense wants to delve into a level of specifics that is unnecessary. He said the prosecution can effectively argue its points and still adhere to the court’s order.
Oral arguments are scheduled for Nov. 16.
(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)