(Host) A judge in Windham County has allowed an undercover police officer to secretly record his conversations with a defense lawyer. Defense attorneys around the state are closely following the case. They say the move is unprecedented, and represents a threat to their ability to vigorously defend their clients.
VPR’s John Dillon reports:
(Dillon) The case began with a domestic assault investigation. A client of Brattleboro attorney Eileen Hongisto was charged with assault and was lodged in the Springfield correctional center.
Brattleboro Police obtained recordings of his phone conversations with his mother and girlfriend from prison. According to court documents, police apparently suspected he was trying to get witnesses not to show up in court to testify against him.
But then the police went a step further. They asked a judge for a warrant to secretly record his defense lawyer, Eileen Hongisto. District Judge Katherine Hayes issued the warrant in late January. The warrant allowed a police detective to work undercover, pose as a witness and talk with the lawyer about whether witnesses should testify.
Attorney David Sleigh represents Hongisto. He says police were illegally trying to induce his client into breaking the law.
(Sleigh) “It’s a hamhanded attempt to entrap a lawyer about whom they had no information that she was likely to commit a crime, or had committed a crime.”
(Dillon) Windham County States Attorney Dan Davis says this is the first time in his two decades as a prosecutor that police officers have obtained a warrant against a lawyer. But he said police and prosecutors are not targeting defense attorneys.
(Davis) “Lawyers are no more above the law than any other citizen. The judge needs to before signing a warrant needs to find probable cause that a crime has been committed or is being committed. Absent that finding of probable cause, the judge can’t go forward and issue a warrant. It doesn’t matter that it’s an attorney or a blue collar worker or someone that’s homeless, that matter is going to be investigated by law enforcement.”
(Dillon) Davis points out that Hongisto’s client recently pleaded guilty to obstruction of justice charge.
But Attorney Hongisto has not been charged with a crime. And Sleigh says his client provided the same advice than any defense lawyer would- that the state can’t prove its case if witnesses don’t testify.
(Sleigh) “If exercising those basic duties constitute evidence of a crime, than any competent lawyer is in the same boat.”
(Dillon) And Sleigh questions why Judge Hayes approved the warrant in the first place.
(Sleigh) “There’s not one thing in that affidavit that says that the lawyer either encouraged her client, the client’s mother or anyone else to get witnesses not to appear or not to live up to their obligations if they are subpoenaed.”
(Dillon) Meanwhile, defense lawyers around Vermont are worried that the case will set a new precedent. Matthew Valerio is the state’s defender general, and overseas the publicly funded network of defense lawyers.
(Valerio) “Well, they’re very upset. They see it as a threat to people working in the defense bar doing their job.”
(Dillon) Attorney Sleigh has asked the court for the evidence police obtained against his client. He says police may have violated the lawyer’s civil rights.
For Vermont Public Radio, I’m John Dillon.