Witness safety cited in decision to close hearing

NASHUA – Superior Court Judge Charles Temple on Thursday reiterated last week’s ruling in which he closed the courtroom to the public for a hearing in the second-degree murder case of Nashua resident Katlyn Marin.

But Temple also allowed part of Thursday’s hearing to remain public, choosing to close only the portion that involved Michael Rivera, Marin’s former boyfriend who is considered the state’s chief witness in its case against Marin.

As he did last week, Temple at the start of Thursday’s hearing denied a motion to open the hearing in its entirety. Thursday’s motion was filed by a Telegraph reporter on behalf of the public, including representatives of The New Hampshire Union Leader, WMUR-TV and NH1 who were present for the hearing.

In arguing against the motion, Senior Assistant Attorney General Jeff Strelzin, the prosecutor in Marin’s case, said that closing the part of the hearing involving Rivera was essential for his safety.

"I can’t give you in public the reasons (to close the hearing), but you know of the threats that exist against this witness," Strelzin told Temple.

The state’s concerns over Rivera’s safety are "real … not theoretical concerns," Strelzin said, adding that the threats are serious enough "to give us the right to close the hearing."

In the meantime, Rivera’s attorney, public defender Paul Borchardt, has filed a motion to lift the "material witness hold" that the state placed on Rivera.

The hold, which allows prosecutors to keep close tabs on Rivera, including protecting him from harm, is essential to assure his "ability to testify at trial," Strelzin stated in his objection to Borchardt’s motion.

Strelzin also wrote in his May 19 objection that they fear "that Rivera could end up dead due to drug use," or that he "might be killed… or otherwise tampered with as a witness, due to the defendant’s efforts," referring to Marin.

Marin’s attorneys, Justin Shepherd and Paul Garrity, took no position on the motion.

In his ruling, Temple said he found "compelling evidence" to support the state’s request to close the hearing.

"The evidence outweighs the public’s right to know in this case, based on the situation," Temple added.

Meanwhile, in the public portion of Thursday’s hearing, Temple addressed Marin’s decision this week to waive her right to a jury trial, meaning she would be tried before only the judge, in this case, Temple.

Shepherd assured Temple that Marin fully understands the implications of her decision. "I’d say we went over it in depth about 75 times over the last few months," Shepherd said.

Convinced that Marin filed the waiver "intelligently" and "knowingly," Temple moved on to her second motion: To compel Rivera to disclose to the defense the financial affidavits he has filed with the state Office of Cost Containment.

Speaking to the motion, Shepherd alleged that Rivera was at one time "working under the table," an indication, he said, that there may be "inconsistencies" in the documents.

"The defense should be able to access those affidavits," Shepherd said. "And if there are any inconsistencies, I should be allowed to cross-examine Mr. Rivera … have the opportunity to impeach the witness".

But Strelzin disagreed, arguing that the motion "has no factual basis" and is "based on guesswork by the defense."

The allegations in the motion "are not based on any evidence," Strelzin said, telling Temple that another reason he should deny the motion is that Rivera’s financial documents contain "no relevant information to this murder case."

Temple said he would take the matter under advisement and rule in the near future.

Marin’s trial is currently scheduled to start on Aug. 15, with Temple presiding. A trial management conference is set for July 22.

Dean Shalhoup can be reached at 594-6443, dshalhoup@nashuatelegraph.com or @Telegraph_DeanS.