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Wiretap on Lawyer was Improper, Judge Rules

Published: Saturday, April 28, 2007
By Adam Silverman
Free Press Staff Writer

A police sting on a defense lawyer -- an operation that worried colleagues statewide about law-enforcement interference in their jobs -- should have been neither proposed nor approved, a judge has ruled.

Karen Carroll, the presiding judge at the state courthouse in Brattleboro, ordered police and prosecutors to give lawyer Eileen Hongisto all copies of a tape-recorded conversation between her and an undercover detective who was posing as a witness against one of the attorney's clients.

Carroll said in her six-page opinion that police presented another judge in the same courthouse, Katherine Hayes, with insufficient evidence to approve the January sting, and therefore the proposed operation should have been denied.

"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," Carroll wrote.

The inquiry into Hongisto arose from a domestic-assault case in which she represented the suspect.

Detectives were having trouble locating two witnesses against Terry E. Russ, so authorities, under fairly routine procedure, recorded several of the suspect's jailhouse phone calls. In the conversations, Russ, his mother and his girlfriend -- the victim of the assault -- 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 those statements amounted to obstruction of justice. Detective Mark Carignan proposed a sting in which he would act as a witness, call Hongisto and ask whether he should avoid going to court. Hayes approved the plan, and the calls were placed in late January.

The calls revealed no improper conduct, according to Hongisto's own attorney, David Sleigh of St. Johnsbury. She told the phony witness she was not his attorney, and that if he received a subpoena, he had to go to court, Sleigh said.

Defense advocates said Hongisto's original comments about the state's need to produce its witnesses at trial were simply a recitation of fact, not an attempt to obstruct justice. Carroll backed that view in her opinion, which she signed the day after a Monday hearing in Vermont District Court in Brattleboro.

"The attorney's statements are an accurate recitation of the state of the law," the judge wrote. "If witnesses do not appear at a hearing and the state is unable to meet its burden of proof, the case against the defendant may be dismissed."

Hayes, whom court personnel said was unavailable for comment Friday, stepped down in March from handling the Hongisto matter.
'A fair shake'

Defense attorneys, who had peppered a statewide e-mail discussion group with concerns after they learned of the wiretapping, said this week's decision is a vindication for Hongisto and the work of representing criminal suspects.

"You've got to fight for your right to do your job," said Sleigh, who represented Hongisto at no charge because he worried the warrant would "freeze" the ability of defense lawyers to speak plainly to their clients. "If you do that, you've got a chance of getting a fair shake."

Bob Katims, a Burlington-based defense lawyer who handles major cases statewide, called Carroll's decision important.

"Allowing this type of behavior would have a chilling effect on our ability to practice law and give people advice," he said.

Defender General Matthew Valerio said he believed the Hongisto warrant, even if upheld, would not have quelled the ability of lawyers to represent clients.

"If you're doing what you're supposed to do ethically, 100 percent, you can't be worried about what some judge or some prosecutor is going to do," he said. But he agreed that Carignan, the Brattleboro detective, did not present sufficient evidence to have been granted permission for his undercover operation.

The prosecutor who handled the case, Deputy Windham County State's Attorney Tracy Kelly Shriver, said she respects Carroll's decision, and both copies of the tape already have been provided to Hongisto. Carignan declined to comment.

In her opinion, Carroll said police did demonstrate Russ attempted to obstruct justice. Russ pleaded guilty to an obstruction charge in addition to a host of other counts stemming from the assault.

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