New & Noteworthy...Judge Withdraws from Lawyer Wiretap CaseMonday, March 26, 2007 A state judge has stepped down from handling a case in which she allowed police to record phone conversations with a defense lawyer to determine whether she was obstructing an investigation. Katherine Hayes, who presides at Vermont District Court in Brattleboro, withdrew from the matter after the lawyer filed court papers last week demanding the judge step aside. Hayes did not explain her reasons for granting the request. The lawyer, Eileen Hongisto, argued in court papers that Hayes should be removed from the case because her impartiality and legal competence were in doubt. "Judge Hayes has an interest in ruling favorably on her own prior decisions," wrote Hongisto's attorney, David Sleigh of St. Johnsbury. Hongisto is challenging a police search, and the judge's approval of the warrant, that arose from a domestic-assault case in which she represented the suspect. Detectives were having trouble locating two witnesses against Terry E. Russ, including the alleged victim, so authorities recorded several of the suspect's jailhouse phone calls. In the conversations, Russ, his mother and his girlfriend -- the alleged victim -- discussed comments they attribute to Hongisto in which she said prosecutors would have to dismiss the charges if their witnesses fail to come to court. Brattleboro police argued that those statements amounted to obstruction of justice. Defense advocates countered that the comments were simply a recitation of fact between attorney and client. Trying to prove their assertion, police proposed a sting in which a detective would pose as a witness, call Hongisto and ask whether he should avoid going to court. Hayes approved the search-warrant application, and the calls were placed in late January, according to court records. Hongisto didn't take the bait. She told the undercover officer, believing he was the witness he purported to be, that she was not his attorney, and that if he received a subpoena, he had to go to court, Sleigh said. Whatever evidence police collected, no charges had been filed against Hongisto through Thursday, two months after the sting. Sleigh challenged the investigation as inappropriate and asked Hayes to order police and prosecutors to hand over all copies of the tape. Procedural rules required the judge "to return to a person aggrieved by an illegal search any property seized as a result," Sleigh wrote. Prosecutors rejected that argument. "As the search in this case was lawful, there are no grounds for this court to return the property," Deputy Windham County State's Attorney Tracy Kelly Shriver wrote in court papers. When Hayes asked for additional legal briefs on the issue, Sleigh filed his motion to have her removed from the case. By Adam Silverman, Free Press Staff Writer |