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Defense Lawyers Decry Inquiry

February 23, 2007
By Louis Porter Vermont Press Bureau

MONTPELIER — An extremely unusual investigation of a Windham County lawyer is raising the hackles of defense attorneys across the state, who worry such inquiries could prevent them from doing their jobs.

But Windham County prosecutor Dan Davis said lawyers don't — and shouldn't — get any special leeway to avoid prosecution, and the matter appears to have been handled appropriately by police and prosecutors.

In late January, Brattleboro police obtained a warrant in district court allowing an undercover detective to call Eileen Hongisto, an attorney in an assault case that became an obstruction of justice matter, and record their conversation.

That warrant was issued in large part because Hongisto advised her client, Terry Russ, that if the purported victim and other witnesses in the case did not appear in court, the state's case would be weakened, according to court documents.

Giving that kind of advice on cases and the court system is what defense attorneys do when they are doing their jobs, said David Sleigh, the lawyer representing Hongisto.

Hongisto declined to comment on the case directly.

Sleigh said Hongisto committed no crime, despite attempts by police to lure her into doing so.

"There is nothing wrong with telling your client if the witnesses don't show up, you win," Sleigh said.

Because the warrant allowed undercover police to call Hongisto and "attempt to induce Eileen to commit a crime," and because the warrant was issued without adequate probable cause, it was a violation of her civil rights, Sleigh added.

Police allegedly represented themselves as possible witnesses in the case in an attempt to see if Hongisto would discourage them from testifying, Sleigh said

"Eileen has not been tried with any crime" and did not commit one, "even during the officer's ham-handed attempt to induce one," Sleigh said.

But Davis pointed out that while no charges have been filed against Hongisto, her client Terry Russ Jr., entered into a plea agreement admitting guilt on a variety of charges, including obstruction of justice.

According to court documents, Russ contacted the alleged victim in the assault case by letter and telephone and discouraged her from testifying. Officials were unable to locate the victim and subpoena her to testify in the case.

"He pleaded guilty to obstruction of justice and violations of conditions of release," Davis said, adding that the inquiry is not over.

"The matter of that obstruction of justice is still ongoing," Davis said.

Brattleboro police declined to comment on the matter, saying it was an ongoing investigation.

"If an attorney is involved in obstruction of justice, they are no more above the law than a homeless person or any other citizen of the state of Vermont," Davis said. "It came to the attention of my office there were those alleging Eileen Hongisto was involved in the effort to obstruct justice."

Sleigh, who Thursday filed a motion asking for the return of all copies of the tapes made of conversations between Hongisto and police, said he doubts there will be any charges filed against his client.

"I don't believe there will be any criminal prosecution because I don't believe she committed any crime," Sleigh said.

Russ pleaded guilty Feb. 5 to five instances of violation of probation, two counts of domestic assault, and a violation of conditions of release, in addition to obstruction of justice.

One thing that is clear about the case is that it is extremely unusual for such an investigation to be started and such a warrant to be issued.

"This is the first time to my knowledge there has been a warrant issued for a conversation between an undercover police detective and an attorney," said Davis, who has been in practice for 21 years.

Defender General Matthew Valerio agreed.

"This situation was the first of its kind that I personally have been made aware of in Vermont," Valerio said.

And the matter is sending ripples through the ranks of defense lawyers in Vermont.

"One of the primary concerns is whether this warrant application is a tactic that would be used to intimidate defense counsel into less than zealous representation," said Valerio, who added that although attorneys worry about that he has seen no evidence yet that is the case.

"They think it would have a chilling effect on appropriate advocacy and giving appropriate advice," Valerio said.

Although she did at one time, Hongisto has not worked for the office of the defender general for more than two years.

Court Administrator Lee Suskin said he is not familiar with the Hongisto case. But in general there is an automatic safeguard against improperly obtaining warrants, because evidence obtained that way will be thrown out if the validity of the warrant is successfully challenged.