- Associated Press - Sunday, June 22, 2014

DOVER, N.H. (AP) - Lawyers for the man charged with raping and killing a 19-year-old University of New Hampshire student are set to begin their case and move closer to answering the question: Will the defendant testify?

Seth Mazzaglia, 31, is charged with first degree murder in the October 2012 death of Elizabeth “Lizzi” Marriott of Westborough, Massachusetts.

Prosecutors have said Mazzaglia strangled Marriott when she rebuffed his sexual advances, then raped her motionless body.

Defense lawyers claim Mazzaglia’s former girlfriend - 20-year-old Kathryn McDonough - smothered Marriott during rough sex. They present their case starting on Monday.

McDonough was on the witness stand for 10 days, testifying under a grant of immunity.

Veteran defense attorneys contend it’s risky to expose a defendant to cross-examination, but add that it is Mazzaglia’s decision to make - even if his lawyers disagree.

“It’s absolutely up to the defendant himself whether he wants to take the stand,” said attorney Mike Ramsdell, a former homicide prosecutor. “There are very few trial strategy decisions the attorney doesn’t make…but that’s one of them.”

Mazzaglia’s lawyers - Joachim Barth and Melissa Davis - prepared prospective jurors during jury selection for the likelihood Mazzaglia would not testify, but that was a month and 17 days’ of testimony ago.

In opening statements, lawyers offered jurors sharply contrasting pictures of McDonough’s and Mazzaglia’s relationship and who killed Marriott.

Prosecutors cast Mazzaglia as the master and manipulator in a sex life marked by bondage and sadomasochism. Defense lawyers say McDonough controlled him and their sex lives.

Defense lawyers stressed the conflicting stories McDonough told investigators - blaming Mazzaglia once she secured immunity from prosecution for herself. She was on the witness stand for 10 days and did not waver in her version of events during a withering cross-examination by Barth.

Jurors are instructed that the defendant has no obligation to testify and they should not hold it against him if he does not.

“You take a huge risk, because if the jury finds the defendant unbelievable in any important respect, you have dramatically undermined your own case when it wasn’t necessary to do so,” said Attorney Richard Guerriero, who has been involved in numerous high-profile cases.”

Guerriero also said that a defendant may be telling the truth but may not come across well or have a nervous laugh or freeze-up on the witness stand.

“How the defendant presents makes a big difference to the jurors,” he said. “You can’t unring the bell.”

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