Massachusetts High Court Rules Against D.A.’s Use of Inmate’s Recorded Phone Calls – Part 1 of 2

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.