In the four years since his daughter, Lizzi, was brutally murdered and raped at 19, Bob Marriott’s grief and pain have mixed with feelings of help-lessness.
Through the anguish of a lurid and highly public three-week trial, he took solace in a judge’s ruling that his daughter’s sexual history had no bearing on the case and could not be used in the murder defense of a man she had just met. With Lizzi unable to speak for herself, her father thought, at least she could preserve a sliver of her dignity.
Now, with the New Hampshire Supreme Court considering whether to open up that private life as part of her convicted murderer’s appeal, the case is drawing national attention for the questions it poses about how to balance a set of powerful rights: a victim’s right to privacy, a defendant’s right to an open trial, and the public’s right to access.
National advocates for sexual-assault victims and prosecutors worry that the court could weaken a longstanding privacy protection known as the rape-shield law, established in all 50 states a generation ago to limit defendants’ ability to introduce sexual history. They say it could discourage rape victims from coming forward to police, to avoid public shaming over their personal life.
For Bob Marriott, a Boston-area software sales consultant, the goal of preserving those protections has drawn a host of allies to his side, including New Hampshire’s attorney general and that state’s congressional delegation. But for him and his wife, Melissa, the case is less about legal precedent than something deeply personal.
“All we have left of Lizzi are memories, and we don’t want those memories overshadowed by things that we shouldn’t know about,” Bob Marriott said, in a phone interview. “If Lizzi was alive, I wouldn’t know any of this stuff — and that would be perfect.”
The New Hampshire Supreme Court ordered information on her alleged past unsealed June 10 — what would have been Lizzi Marriott’s 23rd birthday — but soon stayed its own order, agreeing to keep the information sealed while awaiting briefs and oral arguments, scheduled for next month.
Meg Garvin, executive director of the National Crime Victim Law Institute, called the New Hampshire Supreme Court’s initial decision “beyond unusual.”
“The rape shield was put in place to make the whole system of criminal justice less traumatizing to victims, and this really undoes 40-plus years of rape-shield work,” said Garvin, a professor at Lewis & Clark Law School who is co-counsel for the Marriotts.
Christopher M. Johnson, New Hampshire’s chief public appellate defender, acknowledged the importance of the rape shield and the high bar for a defendant trying to introduce a victim’s sexual history into trial.
Johnson is defending Seth Mazzaglia, who was convicted of murdering Marriott, and he acknowledged that releasing the information could cause her family pain. Of his client, he said, “if there’s a more unpopular person in New Hampshire than Seth, I’m not sure who it is.”
Still, Johnson said, it’s impossible for the public to know if a trial-court judge’s decision to exclude evidence was appropriate if those records remain sealed and the hearings are closed even on appeal.
“It’s a fundamental values choice,” he said. “Do we elevate fairness above privacy or privacy above fairness in the appellate process?”
In the first year of grieving, Bob and Melissa Marriott asked each other if they would ever get through this, if all the good memories of their daughter’s life would come to eclipse the visceral pain of her absence.
‘We don’t want those memories overshadowed.’Bob Marriott, father of victim Lizzi Marriott
“I don’t know if this is just something that takes years and decades for anyone,” said Bob Marriott, 54, “or if the trial [and appeal] is prolonging that grief phase for us.”
Lizzi Marriott, who grew up in Westborough, Mass., was just coming into her own, a college student who retained her childhood playfulness while pursuing her dream of becoming a marine biologist, buckling down in science and math classes and volunteering at the New England Aquarium.
She was studying at the University of New Hampshire when a coworker at Target invited her to hang out.
That was just a ploy, prosecutors would prove at trial. The coworker, Kathryn McDonough, was the teenage sex slave of Mazzaglia, a 30-year-old she met in community theater who ordered her to recruit candidates to join them in sexual encounters.
When Marriott rebuffed the overture, Mazzaglia strangled and killed her, then raped her, before enlisting McDonough to help toss her body into the Piscataqua River.
At trial, Mazzaglia’s lawyer argued unsuccessfully that Marriott was a willing partner who died of accidental smothering. In a hearing in the judge’s chambers, the defense wanted to introduce stories about Marriott’s past that might bolster Mazzaglia’s claim. The judge ruled that allegations about her sexual history were irrelevant and protected.
A few months later, Mazzaglia petitioned the state Supreme Court to overturn his conviction on just one basis: the omission of Marriott’s sexual history.
Traditionally, according to multiple lawyers interviewed, the appeals court would decide the merits — and whether to uphold or vacate Mazzaglia’s conviction — while preserving the seal placed by the trial court, meaning certain appeals hearings would be closed and documents in the public file would be partly redacted.
But in January, the New Hampshire Supreme Court adopted a rule allowing appellate justices to open records that had been sealed at trial — and applied the rule to this case retroactively, asking lawyers for both sides to argue whether the sealed material should be opened to the public.
Before even hearing arguments, the court on June 10 announced that it would unseal everything the following week — and that those records would remain open pending a court decision on whether to reseal them or to overturn Mazzaglia’s conviction.
Advocates were aghast. Amanda Grady Sexton, public policy director for the New Hampshire Coalition Against Domestic and Sexual Violence, called it a “big step back for victims.”
“The common sense test on this is saying that the court made a mistake,” she said.
Gilles Bissonnette, legal director for the American Civil Liberties Union of New Hampshire, said the decision to open the seal as a starting point — instead of after a ruling on the merits — “essentially puts the cart before the horse and really carries the potential to damage the rape-shield statute.”
Reeling, Bob Marriott braced himself to share with other family members what they might soon hear on TV.
But the state swiftly urged the court to hold off, and the court agreed — preserving the seal and setting oral arguments for Sept. 21.
Bob Marriott said he is hopeful the court will see its June 10 decision as a misstep and keep the information permanently sealed.
“The trial is one of the last things that I could do for Lizzi,” he said. “I’m going to keep on fighting for her, because she’s not able to do it herself.”Eric Moskowitz can be reached at firstname.lastname@example.org. Follow him on Twitter @GlobeMoskowitz.