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Mazzaglia trial: Defense tries to create doubt during cross examination of former psychic

Union Leader Correspondent

June 02. 2014 12:53PM

DOVER -- The lead defense attorney in Seth Mazzaglia’s murder trial explored several avenues to deflect blame and raise doubt Monday morning in Strafford County Superior Court during crossexamination of Roberta Gerkin, a Rochester resident and former psychic and tarot card reader.

Mazzaglia, 31, faces charges including first- and second-degree murder in the death that night of Elizabeth “Lizzi” Marriott, a 19-year-old UNH student. 

Defense attorney Joachim Barth focused Monday on Gerkin’s memories of the night of Oct. 9, 2012 night, starting with the phone call Gerkin received from Kathryn “Kat” McDonough, now 20, who asked her to come to the Sawyer Mills apartment in Dover McDonough shared with Mazzaglia.

Barth raised several inconsistencies between Gerkin’s testimony Friday and what she told investigators in the days following her discovery of Marriott’s body in the apartment, focusing on points such as the position of Marriott’s body and whether her face had abnormal coloration.

Barth said Gerkin told investigators after Marriott’s death that she, Mazzaglia and Gerkin's boyfriend, Paul Hickok, all checked for Marriott's pulse, for example, but testified Friday that she was surprised no one else except her did so that night.

“It’s simply not consistent with your prior observations and experience,” Barth said to Gerkin. “That calls into some question, when you say something up here, how accurate it is.”

Gerkin sometimes used sarcasm and repeatedly asked for additional clarity and context on the stand Monday morning before answering questions, citing difficulties with remembering exactly what she told investigators more than a year ago.

“Can anyone make mistakes?” Gerkin retorted in response to one question about a disparity in her statements, before acknowledging that investigators’ transcripts were “more reliable than (her) memory.”

Barth seemed more than willing to accept Gerkin’s memories of that night, though, when he asked her about what McDonough said when Gerkin arrived in the Sawyer Mills parking lot with Hickok.

Barth noted that Gerkin told investigators that McDonough didn’t immediately say she needed to leave, or needed to call police or an ambulance. Instead, Barth said, McDonough said she was locked out of the apartment and needed a key, prompting McDonough, Gerkin and Hickok to walk back to Gerkin’s car while Marriott’s body lay inside the apartment.

“(McDonough) does not claim to you at the door or in the car that Seth has done something terrible,” Barth said.

“Correct,” Gerkin replied.

In Wednesday’s opening statements, Barth told jurors it was McDonough, not Mazzaglia, who killed Marriott that night during sexual acts involving bondage and erotic asphyxiation. Prosecutors have said Mazzaglia strangled Marriott while raping her limp body.

Gerkin testified Monday that after she entered the apartment and she, Hickok and Mazzaglia checked Marriott’s pulse – going by investigators’ transcripts, rather than her testimony Friday – Mazzaglia then assured her that he would call for help.

Gerkin has previously testified that she and Mazzaglia had an informal sexual relationship for several months, prompting attorneys to ask her extensive questions about Mazzaglia’s overall personality and state of mind that night.

Gerkin said she believed Mazzaglia that night when he told her he would call for help.

“Seth, by his own admission, was, in my impression, an honorable person that does the right thing. That was my impression,” Gerkin said. “I was convinced that if he knew what the right thing was, he would do it.

“I was an optimist,” Gerkin continued. “I like to believe, but not anymore, that people will do the right thing if given an opportunity.”

Barth asked Gerkin whether McDonough had given her and Hickok the same assurances that night, that she was about to call police or an ambulance.

“I don’t recall,” Gerkin said.

Barth noted that Gerkin and Hickok then left the apartment and went home, without calling police or an ambulance themselves, and that “it’s days before you are contacted by detectives.”

Barth worked hard Monday morning to raise questions about Gerkin’s relationships with Mazzaglia and McDonough and about her memories of incidents surrounding Marriott’s death. He also spoke about how McDonough and Mazzaglia allegedly had discussed marriage last year, to prevent McDonough from having to give testimony that would, under New Hampshire’s marital privilege law, “lead to a violation of marital confidence.”

Barth noted at one point that Gerkin had previously implied that after Marriott’s death, it briefly seemed like Mazzaglia was casting blame on her and Hickok, making Gerkin angry.

“Are you angry enough to shade your testimony at this point?” Barth asked.

“Absolutely not,” Gerkin said.

Much of Monday morning’s questioning of Gerkin focused on her recollections of conversations and interactions with McDonough. Gerkin was wearing a wire and working with police for some of those conversations.

McDonough could take the stand later this week.

The trial continues this afternoon.

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