N.H. Supreme Court hears arguments in whether to unseal details of Lizzi Marriott’s sexual history

  • FILE - In this Thursday Aug. 14, 2014 file photo, Seth Mazzaglia looks back at his mother after being sentenced to life without parole for killing University of New Hampshire student Elizabeth Marriott, in Dover, N.H. Mazzaglia's trial and sentence was one of New Hampshire's top stories for 2014. (AP Photo/Jim Cole, File) Jim Cole

  • Attorney Rus Rilee, representing Lizzi Marriott’s family, holds a press conference outside the state’s Supreme Court on Wednesday. The justices are currently weighing a decision in the murder case of Seth Mazzaglia concerning the rape shield law, which has gained national attention. GEOFF FORESTER / Monitor staff

  • New Hampshire Supreme Associate Justice James Bassett questions assistant attorney general Peter Hinckley during oral arguments in the Seth Mazzaglia rape shield law case Wednesday. GEOFF FORESTER—Monitor staff

  • Attorney Cyrus Rilee listens to a question from the New Hampshire Supreme Court during oral arguments Wednesday. GEOFF FORESTER—Monitor staff

  • Members of the New Hampshire Supreme Court listen to oral arguements in the Seth Mazzaglia appellate case Wednesday. GEOFF FORESTER—Monitor staff

  • New Hampshire Supreme Court Associate Justice James Bassett asks appellate defender Christopher Johnson a question during the oral arguments Wednesday. GEOFF FORESTER—Monitor staff

Monitor staff
Published: 9/21/2016 3:01:27 PM

National attention is on the New Hampshire Supreme Court, whose five justices face an unprecedented decision – one that could ultimately weaken a decades-old privacy protection for rape victims.

For the first time since the adoption of the state’s rape shield law in 1975, the Supreme Court must consider whether it will open up the private life of a 19-year-old victim in the wake of her convicted killer’s appeal.

A Strafford County Superior Court judge previously ruled that allegations about Lizzi Marriott’s prior sexual history were irrelevant and protected under the law. But her convicted killer, Seth Mazzaglia, is challenging that decision.

Mazzaglia was found guilty of first-degree murder and sentenced to life in prison without parole in 2014 for strangling and raping Marriott. A few months later, Mazzaglia petitioned the state’s highest court to overturn his conviction, arguing the lower court erred in ruling Marriott’s personal history inadmissible.

The Supreme Court heard arguments Wednesday morning on whether the public should have access to the sealed records. The justices openly acknowledged the inherent complexities of that question, including their need to balance a rape victim’s privacy rights with the defendant’s right to a fair trial.

Mazzaglia’s attorney, Christopher Johnson, argued that the rape shield law does not apply at the appellate level. However, Senior Assistant Attorney General Peter Hinckley and attorneys for the Marriott family maintain it does, and that more than 40 years of case law is a testament to that.

During a news conference following the hearing, victims rights advocates called the issue before the Supreme Court groundbreaking and one with far-reaching consequences.

“Every single state in the United States has a rape shield law,” said Lyn Schollett, executive director of the New Hampshire Coalition Against Domestic and Sexual Violence. “Were the New Hampshire Supreme Court to strip away these protections on appeal, we would become the only state in the country to do this.”

Rape shield laws are intended to protect victims by limiting or prohibiting a defendant’s ability to introduce evidence or cross-examine them about their prior sexual behavior.

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.

But before Marriott’s records were unsealed, the justices quickly granted an emergency stay at the request of the state’s attorney general’s office. This effectively paused the disclosure until all sides could state their case before the five justices, which they were able to do Wednesday.

And for the first time, the family had a seat at the table as third-party interveners. The family is backed by 13 organizations, including the New Hampshire Coalition Against Domestic and Sexual Violence, who filed a Supreme Court brief on its behalf in August.

Representatives from those groups were in attendance Wednesday as Hinckley and an attorney for the family, Rus Rilee, argued for Marriott’s records to remain sealed.

Hinckley asked the justices to close the courtroom during oral arguments on the issues raised in Mazzaglia’s appeal. He recommended the court release redacted transcripts of the proceeding within days of the hearing to satisfy the public’s access rights.

Associate Justice James Bassett noted that Hinckley was asking the court to do something it has never done.

And something no other appellate court in the country may have ever done, Associate Justice Robert Lynn added.

When Rilee took to the lectern, Lynn said he had researched the issue, although not exhaustively, and couldn’t find an example.

“Can you point us to any appellate court decision in the country in which in an appellate court, in a criminal case involving an adult defendant, has ever sealed an oral argument before the court?” Lynn asked Rilee.

He replied, “I’m not aware. I’m sure there are cases out there.”

Rilee continued by saying that what distinguishes the case at hand from others is the Marriott family’s constitutional privacy rights as third-party interveners. He said no law or policy supports destroying those interests simply because a defendant appealed his conviction.

But the basis for Mazzaglia’s appeal is the omission of Marriott’s sexual history, Johnson argued. He said if the court does not rule in his favor, he will be hampered by an inability to discuss the specific sexual conduct at issue.

Johnson explained further that if the hearings were to take place behind closed doors, the public would never know the details of why the appeal was granted or rejected.

“The rape shield rule is a testimonial privilege,” Johnson said. “It’s about the experience of having to answer questions. Nobody asks any victims any questions on appeal. The court has also said that a concern underlying the rape shield rule is that the information would be misused by juries. There’s no jury here.”

Hinckley disagreed, saying if that line of reasoning were true then all sealed records should be unsealed on appeal. That includes juvenile and guardianship cases, as well as grand jury matters, he said.

Following the hearing, Hinckley added that there are rare circumstances when the court should exercise limited safeguards, and that includes when there is a compelling interest to protect a victim’s privacy.

“We recognize it’s a somewhat unique case here,” he said. But, he noted, the “expectation of privacy of rape victims really is no different.”

During Wednesday’s oral arguments, justices recognized the importance of looking at the issues through the victim’s eyes – and did so for the first time, said Meg Garvin, co-counsel for the Marriott family and executive director of the National Crime Victim Law Institute.

She said this case will set a precedent nationally.

“If we have a criminal justice system that says the minute you’re victimized everything about your prior sexual history is open for public interpretation, public smear, all of that, then we will have victims who do not come forward,” Garvin said.

The question before the criminal justice system, she said: “Is our court system going to be open to victims and a place where they can access justice, or are we going to close the doors to that?”

(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)

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