Boston Criminal Attorney Blog

In my previous post, I discussed a recent Massachusetts Supreme Judicial Court (SJC) ruling, concerning the admissibility of jail inmates’ recorded phone conversations. More accurately put, the decision concerns not so much the admissibility of these recordings in and of themselves, but in how the recordings must be obtained by prosecutors, before the recordings will be allowed as admissible. The court’s unanimous decision ruled that in prosecutors unilaterally drafting and presenting this subpoena to jail officials (a sheriff in this case,) and in obtaining these recordings in this manner without first obtaining a judge's approval, prosecutors violated the Massachusetts Rules of Criminal Procedure by not obtaining prior court approval for the subpoena. Justice Margot Botsford, writing for the court, said that the requirement to seek prior court approval for pretrial subpoenas “seems especially appropriate in a case like this one, where the information sought recordings of the defendant's telephone conversations are at least arguably confidential in some sense, whether entitled to constitutional protection or not." The high court referred the case back to Middlesex Superior Court for a hearing to determine whether Odgren's constitutional rights were violated in the first place, by the initial issuance of the subpoena for the recordings.

A central issue here, is leveling the playing field between prosecutors and defense attorneys on the issuance of pre-trial subpoenas. As a Boston criminal defense lawyer, I can assure you that this issue is always lurking beneath the surface, in courtrooms across the state. The reason is that historically, District Attorneys’ offices in Massachusetts had always claimed that they had the authority to unilaterally issue subpoenas for the pretrial production of evidence in a criminal case, without having to obtain a judge’s prior approval - whereas defense attorneys were required to obtain judicial approval for such subpoenas. Doesn’t sound too fair, does it? Notwithstanding, Middlesex County District Attorney Gerry Leone responded to the SJC ruling, by saying that prosecutors will continue to seek recordings of inmates’ phone conversations. "This decision clarifies the process that the commonwealth must follow to obtain communications made by incarcerated defendants who have previously been informed that their calls are being recorded," Leone said. "It continues to be our position that this and other incarcerated defendants do not have an expectation of privacy regarding their jail calls. We will now move forward with the process the court has outlined to obtain those calls and are confident that we will prevail in these efforts."

Odgren’s lawyer had argued that prosecutors were required to appear in front of a judge to request the tapes, and further that prosecutors needed to request specific days and times that were recorded, instead of large spans of recordings so they could try to “mine” the recordings for anything useful for the Commonwealth’s case. The court agreed, and as I read this opinion as a Norfolk County Massachusetts criminal defense attorney, it appears to me that the court may have left the door open to a future ruling that depriving a juvenile of any opportunity to communicate privately with his family about his case, might constitute a violation of constitutional rights. The other side to this argument, of course, (and not a completely illegitimate one,) is the fact that inmates, and those who are either visiting them personally and/or talking with them over the phone, are clearly informed beforehand that their conversations are being recorded.

Odgren, who remains in jail awaiting trial, faces life in prison without the chance of parole if convicted of first-degree murder in Massachusetts. He is scheduled to appear in Middlesex Superior Court on Oct. 26 for a pretrial conference.

In the constant tug-of-war between Massachusetts prosecutors’ offices and criminal defense attorneys over admissible evidence, the Massachusetts Supreme Judicial Court (SJC) yesterday issued a ruling against prosecutors, and in favor of defendants who are incarcerated and awaiting trial.

The case concerns a shocking event that occurred in January 2007, at Lincoln-Sudbury Regional High School, which I’ve blogged about previously (actually, it was my very first post on this blog). The defendant was a then-16 year old high school student by the name of John Odgren, now a guest of the Commonwealth at the Middlesex Jail in Cambridge (he was previously held at a juvenile facility in Plymouth, until he turned age 17). On January 19 2007, Odgren is accused of luring a fellow student into a boys bathroom in the high school - a student he didn't even know and had apparently no history with - and plunging a 13-inch carving knife into his heart five times, killing him in a savage bloodbath. When the attack was finished, Odgren openly admitted to bystanders that he killed the boy. Witnesses reported that he even helped to try and stop the victim’s bleeding. His attorney does not dispute that Odgren committed this murder. His defense will be based on a legal principle known as "Lack of Criminal Responsibility," which essentially means that the defendant lacked the mental capacity to understand the criminality of his act, or to conform his actions to the law. Reportedly, this defense will be based on Odgren’s assertion that he suffers from "Asperberger’s Syndrome" – a type of autism that can allegedly cause uncontrolled, violent behavior.

Prosecutors aren’t buying this claim, and to prove that Odgren does not suffer from any such mental disorder, Middlesex County District Attorney Gerald Leone’s office tried to obtain tape recordings of Odgren’s phone calls to family and friends outside the jail, as well as recordings of his conversations with visitors inside the jail (visitors are separated from inmates by a glass pane, and the inmate must communicate with such visitors through a phone). Inmates and visitors are advised in writing that all such conversations will be tape-recorded. The District Attorney wanted tapes of Odgren’s conversations, presumably to use them as evidence at trial to try to prove that he relates in a perfectly normal manner to other people – that he does not suffer from a mental disease or defect. If a jury were to hear recordings of conversations that Odgren has had with friends, family and visitors while in jail - in which he displayed no discernible evidence of a failure to understand his actions or exhibited no other evidence of mental illness - that would present a formidable problem for the defense.

From a prosecutorial point of view, that's not a bad strategy. But it's the manner in which prosecutors had tried to obtain the tapes, that resulted in the SJC's ruling here - not the tapes themselves. The vehicle by which prosecutors tried to obtain the tapes is known as a “subpoena dues tecum." This is an instrument that is used to obtain documents from a witness (in this case, prison administrators who kept the tapes of Odgren’s recorded conversations). Subpoenas are usually issued automatically by a court clerk, and must be served personally on the party being summoned. In this case, prosecutors issued the subpoena to jail administrators without prior court approval, and the jail turned the tape recordings over in lieu of a hearing in front of a judge. Note to county sheriff's and state prison administrators: Think twice about this from now on.

I’ll tell you what the SJC specifically had to say about this, and why, in my next post.