Q&A with criminal defense attorney Mark Sisti


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‘I don’t have to believe my client is innocent at all,’ says New Hampshire attorney Mark Sisti. ‘I have to believe that the system has integrity and that the jury will follow the direction and instructions of the court.’

Photo by Jodie Andruskevich

Mark Sisti, 61, grew up in Buffalo, N.Y., and attended Canisius College in Buffalo. He moved to New Hampshire as a student of Franklin Pierce Law Center, now the UNH School of Law and has been a criminal defense lawyer in New Hampshire for more than 30 years.

With his former law partner, Paul Twomey, he defended Pamela Smart, the media services coordinator at Winnacunnet High School who was convicted in 1991 of conspiring with students for the murder of her husband, Gregory Smart.

Sisti is currently defending Anthony Barnaby, who was extradited from Canada in May to face a fourth trial – following three hung juries – on the charge of murdering two women in Nashua.

Q. When did you decide that you wanted to be a lawyer?

A. I got a really good interest in it when I was in a neighborhood that was primarily Italian in the west side of Buffalo. The guy that was looked up to in the neighborhood was the local lawyer – Antonio Scholino. He was the guy who took care of everybody, and he was the guy in the neighborhood who took care of business.

Q. Did courtroom dramas have any influence on you?

A. The thing that had the most influence on me was that I was in high school in Buffalo when the Attica [prison riot] broke. Those trials were centered in Buffalo, and I was able to skip out of school on many occasions to go and actually see some of the finest criminal lawyers in the United States trying cases.

Q. What brought you to New Hampshire?

A. I got into a bunch of law schools. The law school I chose was the one that had the most risk. That was Franklin Pierce Law Center. It was new, cutting-edge, it wasn’t following the old template of a law school.

Q. We see a lot of actors on TV playing lawyers. Conversely, does a trial lawyer have to be a good actor?

A. This is an interesting take. First of all, I think you have to be real careful being an actor. A jury will see through you and therefore you will lose your credibility. I think trial lawyers have to, honestly, number one, trust a jury; and number two, honestly love what they’re doing, which includes love their client. And if you can’t convey that, then I don’t think any jury is going to believe anything else you do.

Q. Do you have to believe your client is innocent? Or if you have doubts about it, can you still do a good job representing that client?

A. I don’t have to believe my client is innocent at all. I have to believe that the system has integrity and that the jury will follow the direction and instructions of the court. If I can’t believe that the jury is going to follow the law, then there’s probably no reason at all to be a trial lawyer.

Q. Do you think that Pamela Smart was not guilty of what she was convicted of?

A. Do I think so? Yeah. The prosecution’s claim isn’t necessarily what carried the day. I think what carried the day was Pam’s own words that were on tape. Again, saying nothing would have probably been preferable.

Q. Do you think it hurt more than helped her with the jury that she was young, attractive enough to lure this young boy and intelligent enough to know better?

A. I don’t know how the jury felt. All I know is, the media painted a certain picture, much like that which you’ve just stated, and the picture could be painted a million different ways.
If you want to take it down another road, you could say she’s young, she’s naïve, she’s not worldly. She got caught up in something that went out of control.
I mean, you can make it whatever you want. It sells more papers and you’ll watch more television if she’s a temptress and she’s trying to seduce young boys as a teacher – which she was not, by the way.

Q. How do you feel about the fact that the others convicted for that crime are now out while Smart has a life sentence?

A. Frankly, there is no good reason why Pam should not be considered at least for parole. We all know, even in the state’s best scenario, we all know that she didn’t obtain a firearm, she didn’t obtain ammunition, she didn’t break into a house, she didn’t force an individual to his knees, she didn’t fire a round into his head.
The bottom line is it had a lot to do with emotion, it had a lot to do with this characterization that “the kids” were somehow less culpable. But you know, if you look at the case, “the kids” were certified as adults by the prosecution. The kids were exactly what I believe they were [and said] on opening statement that day, and that was that they were thrill killers. And that they took advantage of a situation and then covered for each other and pulled off probably one of the most successful conspiracies to hide their own culpability.

Q. On the Barnaby case, you went through three trials with him on the same charge and you got a hung jury on each one. Do you think maybe we need an amendment to the Fifth Amendment to clarify what double jeopardy means?

A. No. I mean there are a lot of problems with this case, and we’ll be addressing them. I don’t want to get into all the specifics. This stuff is going to come out in pleadings.

I believe that the Canadian court was hoodwinked into believing that the state of New Hampshire had new and/or substantial evidence. I believe that will come to light as we move along in this particular matter. Frankly, the evidence in this case has come to be much more favorable to Mr. Barnaby this round than it was in the first three rounds.

Q. What other cases have you been involved in that might be considered high profile?

A. The first murder case that Paul [Twomey] and I tried was in 1982, State of New Hampshire versus Gary Brooks. It was a bow and arrow murder in Farmington. It was actually quite an interesting case. It was a fascinating case. And we were fortunate enough to get a “not guilty” in that case. In the Brooks case, we called Gary’s brother Jimmy [as a witness] and we alleged that Jimmy was the killer.

Q. He was never convicted either, was he?

A. He was never charged. Nobody was ever convicted.

Q. You’ve had a long and interesting career. Judge Douglas Gray at the end of the Pamela Smart trial famously, or infamously, said he’d like Clint Eastwood to play him in the movie. Who would you want to see play Mark Sisti?

A. I have to honest with you. I don’t give a damn, one, and that’s not what’s going through my head when I’m trying to do these things.

Q. Come to think of it, there were at least a couple of movies made about that case. Who did play you?

A. I don’t even remember. I mean that’s how unimportant it really is.

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