DOVER – Defense attorney Joachim Barth asked Kathryn “Kat” McDonough on Monday morning why she wouldn’t tell his office the truth about the death of UNH student Elizabeth “Lizzi" Marriott if McDonough knew his legal team was trying to help her ex-boyfriend, accused murderer Seth Mazzaglia.
Barth pounced on the point after McDonough said, in her 10th day on the stand in Strafford County Superior Court, that when she gave a statement in Barth’s office just days after Marriott’s death on Oct. 9, 2012, she could have told the l;awyers Mazzaglia “had murdered 1,000 people” and Barth’s team, as Mazzaglia’s defense, still would have tried to help him.
“Yeah,” Barth said. “What you’ve just acknowledged is that even if you had said that to us, it wouldn’t have mattered.”
McDonough has said protecting Mazzaglia was her goal in speaking with Barth’s legal team after Marriott died in the Dover apartment she and Mazzaglia shared. Mazzaglia was arrested Oct. 13, 2012. McDonough spoke with Barth’s legal team on Oct. 15 and 17.
McDonough has testified in Mazzaglia’s ongoing trial that she was lying to Barth’s team – and telling a completely fabricated story – when she described to them in detail how Marriott died of suffocation and a seizure while having rough sex with McDonough. Last week in court, Barth played a lengthy audio and visual recording of McDonough talking with his team in that meeting.
McDonough has testified that Marriott actually died of strangulation at the hands of Mazzaglia, 31, who is facing first- and second-degree murder charges.
Barth said Monday that if that was the truth, McDonough could have safely told Mazzaglia's lawyers after Mazzaglia's arrest.
“You could have come in and told us about the supposed truth, about murder, because we were working for him. That’s what you said about three minutes ago,” Barth said. “Because the guys working for Seth, his lawyers, needed to know the truth in order to help him.”
“I didn’t want anyone to know the truth,” McDonough replied. “I didn’t want it to get out at all.”
Barth noted that McDonough stopped speaking with police shortly after they began questioning her, but came into Barth’s law office to speak with investigators on his legal team.
“Why did you go on to tell anything to the public defenders and not the police?” Barth asked, before answering his own question with a claim. “Because we were Seth’s lawyers, and we were working for him.
“You trusted us with the truth,” Barth added.
“I trusted you guys with a story that was made up off the top of my head,” McDonough replied.
“What you’re saying is that there is no difference between the guys working against him and the guys working for him, and that they both needed a lie?” Barth asked.
“I trusted you guys, but I didn’t trust you with that information,” McDonough insisted. “I didn’t trust anyone with the truth until…. it was something I had to do. But that wasn’t until the February after, when I was subpoenaed and told that I really had to tell the truth.”
“I had already told you plenty of lies…so it was easy for me to lie to you,” McDonough added.
“It is easy for you to lie, isn’t it?” Barth replied.
Hampton attorney Andrew Cotrupi, McDonough’s lawyer, said McDonough responded well to that line of questioning.
“She was an easy target before this trial, and she’s an easy target during this trial,” Cotrupi said.
McDonough told a grand jury in February 2013, in a sworn statement, that Mazzaglia strangled Marriott from behind with a white cotton rope after a game of strip poker, and after Marriott, citing a committed relationship, had said it would not be OK for McDonough and Mazzaglia to have sex in front of her in their apartment.
Barth then cited McDonough’s visits to Mazzaglia in jail after he was arrested, and asked whether they had a conversation in which Mazzaglia expressed concern about her statements in Barth’s office, because the statements could implicate her.
McDonough said she didn’t fully tell Mazzaglia about her statements at that time.
“Are you seriously claiming to this jury that you went in and talked to Seth, and you didn’t reveal to him” what statement you had made, Barth asked.
That spurred one of several objections Monday morning from Assistant Attorney General Peter Hinckley.
“Is the counsel going to continue with this for the next two days, just asking the witness if she’s serious about things?” Hinckley asked Judge Steven Houran.
“It’s possible,” Barth retorted.
Houran acknowledged Hinckley’s point but allowed the question.
“When you went to the jail, and you sat across from him, I’m asking you, did you have a conversation where he was upset and concerned that you had made the statement to us?” Barth pressed.
“Seeing as I don’t remember it, I’d rather not say that it’s true or not,” McDonough said.
The back-and-forth seemed to have a numbing effect on the jury. Several members leaned back in chairs, rested a tired head on a hand or restlessly fidgeted.
Monday’s proceedings began the fourth full or partial week of Mazzaglia’s trial, which began with opening statements May 28.
McDonough has said on the stand that after strangling Marriott, a 19-year-old from Westborough, Mass., Mazzaglia then raped Marriott’s limp body.
McDonough, 20, is serving a 1½- to three-year prison term after pleading guilty last July to charges including witness tampering and hindering the investigation, as part of a plea agreement. She has testified that she helped cover up the murder and rape of Marriott, whose body has never been found.