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Police Sting on Lawyer Rankles State Defense Bar

Published: Sunday, February 25, 2007
By Adam Silverman
Free Press Staff Writer

The man on the phone, court documents would reveal later, was an undercover police detective, but the defense lawyer had no way of knowing that then.

The officer, acting earlier this month on a wiretap warrant, pretended to be a witness for whom authorities were searching in a domestic-assault case; the lawyer was representing the suspect. The investigator asked whether he should duck police attempts to serve him with a subpoena, or, if agents found him, whether he should violate the order and skip the court date. After all, wouldn't that help the lawyer's client?

Police suspected the longtime Windham County lawyer, Eileen Hongisto, might say yes -- even though that answer would constitute obstruction of justice, according to court papers. Hongisto did not, her own lawyer said, and now the incident is generating outrage and consternation among defense attorneys statewide.

Lawyers are incensed at tactics they call entrapment, an undercover operation they claim was intended to stymie legitimate defense work, a warrant they allege was unsupported by any facts, and the judge who approved the sting. The warrant, defense lawyers and even the local prosecutor say, is without precedent in Vermont.

Whatever evidence police obtained, the matter had not prompted criminal charges by Friday, nearly three weeks after the warrant was executed.

The problem, according to Hongisto's attorney and dozens of e-mails exchanged by members of the defense bar in the past two weeks, is that all Hongisto did was tell her client the truth: If prosecution witnesses don't show up at trial, the state loses. A statement of fact from attorney to client, defense advocates argue, should not become the basis for a criminal investigation of a lawyer.

"That hits at the absolute core of the defense function," said St. Johnsbury lawyer David Sleigh, who is representing Hongisto in a challenge to the warrant in Vermont District Court in Brattleboro. "If you can't tell your client the truth about the state's burden of proof, your ability to do your job is not just chilled, it's frozen."

Hongisto did not respond to repeated requests for an interview last week, but she wrote an e-mail to a discussion group for defense lawyers to say she acted properly. Her e-mail was among 74 pages of electronic correspondence released by the Defender General's Office in response to a public-records request from The Burlington Free Press.

"I did NOTHING wrong," Hongisto wrote in a Feb. 12 e-mail she characterized as "a warning" to other lawyers. "It puts a chilling effect on 'zealously' representing your client when you have to worry about criminal charges for doing so."

Brattleboro Police Department Detective Mark Carignan, who handled the domestic-violence case and later sought and executed the warrant on Hongisto, declined to comment. The judge, Katherine Hayes, said through court personnel she would not speak to the media.

Windham County prosecutor Dan Davis also declined to make specific remarks on the incident, but he did emphasize that a judge reviewed the case before the sting. He also conceded he's never seen a similar warrant.

"I'm in my 21st year as state's attorney, and this is the only one I'm aware of," he said. "That's extremely rare."

The police and judge have supporters, too, including the leader of the Vermont Bar Association and a prominent law professor.

"We don't want our police to treat anyone as above the law, especially lawyers," said Michael Mello, a former defense lawyer in death-penalty cases who now teaches at Vermont Law School in South Royalton. "We have a special trust. We have special powers. We hold a special place in society. Lawyers have to adhere to a different standard -- a higher standard -- and I feel it is very important that crimes committed by defense attorneys be investigated.

The case
Hongisto, a former public defender now in private practice, was hired to represent Terry E. Russ after he was arrested in November on suspicion of aggravated domestic assault on his girlfriend. Police, unable to find two key witnesses, including the alleged victim, recorded several jailhouse telephone calls involving Russ -- a common and legal police tactic. The calls included one to his mother and another to the girlfriend, according to a sworn account Carignan wrote.

In the conversations, Russ, his mother and the girlfriend discuss comments they attribute to Hongisto in which she said prosecutors would have to dismiss the charges if their witnesses fail to come to court.

Carignan described the conversations in a Jan. 24 affidavit supporting his request for a search warrant, which he said was likely to uncover evidence of obstruction of justice by Hongisto. Judge Hayes approved the warrant the same day.

Hongisto deflected the detective's overtures, Sleigh said. She told Carignan, 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.

Carignan filed court papers Feb. 6 to say the warrant had been executed and he had "seized an audiotape of a conversation as evidence." The tape is considered part of an ongoing investigation and is not a public record.

The response

Sleigh called the investigation "entrapment." There was insufficient evidence to suggest Hongisto was acting illegally, so it was improper for law enforcement to attempt to induce her to commit a crime, Sleigh said.

"There's no evidence Eileen contacted witnesses and told them to flee; there's no evidence Eileen contacted witnesses and told them not to accept service of a subpoena; and there's no evidence Eileen contacted witnesses and told them if they are served not to come. There's no indication whatsoever that Eileen was ready to commit obstruction of justice," Sleigh said. "They posited a question to see if Eileen would cross the line."

Sleigh also criticized the judge for granting the warrant -- a complaint echoed repeatedly in the copious e-mails that circulated on the defender general's discussion list.

"All lawyers, including judges, have an ethical obligation to refrain from engaging in conduct that is prejudicial to the administration of justice," wrote Bennington lawyer David F. Silver. "Permitting a law enforcement agent to surreptitiously tape a lawyer based on a claim that the lawyer was merely doing her job creates a chilling effect on a client's 6th Amendment right to counsel, and therefore on the administration of justice."

Attorneys worried the investigation might affect how they advise clients.

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

Bob Paolini, executive director of the Vermont Bar Association, said the incident was less worrisome because the judge reviewed and approved the warrant.

"If there's probable cause from the state's point of view that a crime has occurred, they have an obligation to pursue that," Paolini said. "It sounds like the system worked the way it was supposed to work. It doesn't sound like any abuses occurred here."

Sleigh has filed a request in District Court in Brattleboro demanding the state surrender all copies of the taped conversation. He requested an immediate hearing, but none had been scheduled at the close of business Friday, he said.

Defender General Matthew Valerio sought to quell the e-mail outcry by emphasizing that police never eavesdropped on attorney/client conversations, but he also acknowledged the situation has rankled many defense lawyers.

Valerio told the discussion list he will travel Monday to Brattleboro to meet with Hongisto and other interested lawyers to investigate the matter further, writing in one e-mail, "There is more here than meets the eye."

Contact Adam Silverman at 660-1854 or asilverm@bfp.burlingtonfreepress.com