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Failed sting against lawyer draws protests

BRATTLEBORO, Vt. -- Longtime lawyer Eileen Hongisto didn't take the bait when the police officer lied about who he was, but the attempted sting is drawing protests from her fellow attorneys nonetheless.

Court papers say Brattleboro Police Detective Mark Carignan, executing a court-approved warrant, called Hongisto earlier this month and pretended to be a witness in a domestic violence case in which Hongisto was representing the defendant.

Saying he wanted to help Hongisto's client, he asked whether he should try to avoid police efforts to serve him a subpoena to come and testify in court or whether, if served with a subpoena, he should fail to show up in court.

Court papers say police thought Hongisto might commit the crime of obstruction of justice by advising the phony witness to take those steps. The sting failed when Hongisto told the caller she wasn't his lawyer and that if he got a subpoena he would need to go to court.

Lawyers, including the local prosecutor, say the attempted sting, approved by Vermont District Court Judge Katherine Hayes, is unprecedented in Vermont.

"I'm in my 21st year as state's attorney and this is the only one I'm aware of," said Windham County State's Attorney Dan Davis. "That's extremely rare."

Police sought the warrant for the sting against Hongisto after they recorded phone calls between defendant Terry E. Russ, his mother and his girlfriend. They talked about comments allegedly made by Hongisto that the state would have to drop the charges if witnesses failed to come to court.

Hongisto's lawyer, David Sleigh, said it was a simple statement of fact that if prosecution witnesses don't show up for trial, the state loses.

"This hits at the absolute core of the defense function," the St. Johnsbury lawyer said. "If you can't tell your client about the state's burden of proof, your ability to do your job is not just chilled, it's frozen."

An e-mail list maintained by the state defender general's office drew numerous notes of dismay that the warrant was granted and carried out.

"Imagine this," wrote Bennington lawyer David Silver. "Your client asks you, 'What will happen if the complainant does not testify at trial?' Must you respond, 'I cannot answer that question'?"

But Robert Paolini, executive director of the Vermont Bar Association, said the situation was less bothersome because a judge had approved the warrant.

He said the state had an obligation to seek the warrant if investigators believed a crime had been committed.

"It sounds like the system worked the way it was supposed to work," Paolini said. "It doesn't sound like any abuses occurred here."