THE STATE OF NEW HAMPSHIRE

SUPREME COURT
In Case No. 2014-0592, State of New Hampshire v. Seth
Mazzaglia, the court on October 14, 2016, issued the following
order:
On July 13, 2016, the court granted the emergency motion to intervene,
filed by the father of the victim, both individually and as administrator of her
estate, for the limited purpose of responding to the questions set forth in the
courts June 15 order. The court heard oral argument from the parties and the
intervenor on those questions on September 21. On September 29, the court
issued an order resolving those questions, thus, satisfying the purpose for which
intervention was granted.
On October 5, the intervenor filed a motion to clarify our September 29
order. Although the purpose for which intervention was granted has been
satisfied, and, therefore, the intervenor is no longer a party, we, nonetheless,
respond to his motion as follows.
In his motion, the intervenor sought clarification with respect to the oral
argument on the defendants direct appeal of his convictions. In the defendants
direct appeal, the defendant challenges the trial courts ruling that evidence of
the victims alleged interest in, or alleged openness to, certain sexual practices
was inadmissible and its rejection of his argument, made at various times during
the trial, that the State had opened the door to that evidence.
In our September 29 order, we stated that the oral argument on the
defendants direct appeal shall be open to the public. We now clarify that we
expect, at oral argument, that counsel will, in good faith, express their arguments
regarding the proffered evidence in such detail as is reasonably equivalent to the
detail in the States replacement, redacted public brief on the merits, filed on
September 7.
Dalianis, C.J., and Hicks, Conboy, and Bassett, JJ., concurred.
Lynn, J., dissenting. Although I joined in, and am in complete agreement
with, this courts order of September 29, 2016, the instant order, in my view,
does more than clarify that order. The September 29 order determined that
materials which the trial court had placed under seal would remain under seal.
And, while it also cabined, to some extent, any revised public brief that the
defendant desired to file by providing that such brief could reference the sealed
materials reference to the victims alleged interest in, or openness to, certain

sexual practices in reasonably equivalent detail to that presented in the States

replacement brief, it did not place any restrictions on oral argument. Rather, we
ruled that oral argument was to be open to the public.
Now, however, the majority extends this reasonable equivalency standard
to what can be said at oral argument. To my knowledge, this court has never
before attempted to choreograph what can be said by litigants at an oral
argument that is open to the public, and I believe it is unwise public policy for us
to start down this very slippery slope in this case. It is, of course, true that the
parties have no right to oral argument at all and that the court could decide the
case based upon the written briefs, as we often do where we conclude that oral
argument would not be helpful to our decision-making or to public
understanding and respect for the judicial process. However, in this case, all
members of the court agree that oral argument should be held. That being the
case, I believe that counsel for both sides must be afforded full opportunity to
present their arguments in the manner they (not this court) deem best to
represent the interests of their respective clients. This is especially true when it
is remembered that, aside from being presented in court, the sealed information
at issue is not otherwise privileged or confidential. As the majority recognizes,
given the caliber and integrity of counsel, there is no basis for concern that one
side or the other will reference sealed materials during argument merely for the
purpose of causing harm or embarrassment to anyone. However, given the
unscripted, often quick-paced exchanges between court and counsel that is the
hallmark of oral argument, I believe its value both to us and to the public may be
significantly undermined if counsel feel they must self-censor (in order,
potentially at least, to avoid sanctions) in a manner that affects their ability to
present, what in their judgment, are the most cogent arguments.
For the reasons stated above, I would deny the intervenors motion for
clarification.

Eileen Fox,
Clerk
Distribution:
Strafford County Superior Court, 219-2012-CR-00514
Christopher M. Johnson, Esquire
Geoffrey W. R. Ward, Esquire
Peter R. Hinckley, Esquire
Cyrus F. Rilee, III, Esquire
Margaret A. Garvin, Esquire
Gilles R. Bissonnette, Esquire
Steven F. Hyde, Esquire
Claudia J. Bayliff, Esquire
Thomas P. Velardi, Esquire
File
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