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No Probable Cause for Phone Tap

April 28, 2007

By Louis Porter Vermont Press Bureau

MONTPELIER — A judge has ruled that Brattleboro Police lacked probable cause to tape record a conversation between an undercover officer and a defense lawyer that police suspected of involvement in an obstruction of justice.

The police investigation of a defense lawyer has alarmed some attorneys in Vermont, who worry it could impinge on their ability to effectively represent their clients.

The investigation sprang from a criminal case against Terry Russ, who was accused of domestic assault. After police had trouble locating witnesses, including the victim, they initiated an obstruction of justice investigation. Russ eventually entered into a plea agreement.

Based on telephone conversations between Russ and his mother, Brattleboro police apparently suspected that his lawyer, Eileen Hongisto, may have been involved in obstructing justice as well, although she was never charged.

Police obtained a warrant allowing them to tape a telephone conversation in which an undercover detective posed as a witness and asked Hongisto if he should testify against Russ.

This week Judge Karen Carroll of Windham District Court ruled that the warrant never should have been issued and ordered that the tapes of the conversation be given to Hongisto.

"A review of the affidavit in support of the search warrant in this matter reveals that it lacked the necessary probable cause to support the belief that Ms. Hongisto was involved in criminal activity or that evidence of a crime would be obtained through a phone call to her by an undercover police officer," according to the ruling.

The judge who issued the warrant, Katherine Hayes, recused herself from ruling on Hongisto's request to be given the recording.

"I feel totally vindicated," Hongisto said Friday. "I hope by going as far as we did go with this that we protected defense attorneys.

I knew I hadn't said anything wrong or done anything wrong, but I needed to have the public know that as well."

Hongisto said she is not sure if she will file a civil lawsuit against authorities.

"I haven't thought that far ahead at all."

Windham County State's Attorney Dan Davis said he did not see the warrant request before it was presented to the judge and his office will not appeal Carroll's ruling, which was issued Tuesday.

"We have followed the judge's direction and returned the audio tapes to attorney Hongisto," he said.

Allegations of a crime must be investigated whether the accused is a lawyer or not, Davis said.

"If, in fact, there is an allegation that someone may be involved in violating the law, that matter ought to be looked into," he said.

Still, the investigation and tape recording of a conversation with a defense lawyer is unusual, he said.

"This is a very rare event," Davis said. "This is the only time I am aware of in my 32 years in law enforcement in the state … that this has happened."

Defender General Matthew Valerio said the judge's decision this week was the correct one.

"It vindicates Eileen Hongisto and it frankly supports my opinion and the opinion of many defense counsel that there wasn't probable cause to support the warrant," Valerio said.

Hongisto said the danger the case presented was that it would block defense attorneys from advising their clients about the status of their cases.

"You wouldn't be able to give accurate and sound legal advice to your client," she said. "If you are not allowed to discuss those options with your client, how can they make an informed and voluntary decision?"

Hongisto is a Vermont Law School graduate and worked as a public defender before going into private practice.

Contact Louis Porter at louis.porter@rutlandherald.com