The state’s highest court is weighing whether to grant a new trial to the man convicted of killing University of New Hampshire student Lizzi Marriott.
Lawyers for Seth Mazzaglia argued before the New Hampshire Supreme Court Wednesday that Marriott's sexual past, which was excluded from the jury trial, is vital to his defense.
His lawyers have argued Marriott accidentally suffocated during rough consensual sex between her, Mazzaglia and his girlfriend at the time.
Mazzaglia’s appeals attorney, Chris Johnson, told the justices that in order to prove that, the jury needed to hear evidence showing the victim would have taken part in such sexual activities. But since that information was protected under the state’s Rape Shield Law during trial, Johnson argued, the jury might have assumed Marriott objected to that type of activity.
“The jury will infer that somebody like her, some people do this kind of stuff, but nobody like Miss Marriott would possibly have any interest in BDSM [bondage esc behavior]," Johnson told the justices.
Justice Carol Ann Conboy questioned that reasoning.
“You would say the jury could consider that she had interest in these activities makes it more likely that the defendant didn’t murder her?" Conboy asked Johnson. "That’s the link that I’m having difficulty with in your argument.”
Prosecutors have argued that Mazzaglia strangled Marriott after she refused to have sex. During Wednesday's arguments, Assistant Attorney General Geoffrey Ward stressed that Marriott’s sexual past, is irrelevant to what happened that night.
“Consent on one occasion in and of itself does not equate to consent on a future occasion,” Ward said in court.
Ward also challenged the defense's case by pointing out that two eyewitnesses testified at trial that they saw Marriott's body after the incident and that her wounds strongly suggested she had been strangled, not smothered. Marriott's body was never found.
A decision from the court could take three to six months.