Use of taped conversations barred in student's trial

Jailhouse talks with kin at issue

WOBURN - A Middlesex Superior Court judge barred prosecutors yesterday from using taped telephone conversations - for now - between John Odgren and his family, evidence prosecutors say would show the teen was sane when he allegedly stabbed a Lincoln-Sudbury High School classmate to death last year.

Superior Court Judge Raymond Brassard said prosecutors violated state law by using a subpoena to obtain copies of all of Odgren's jailhouse conversations from the Plymouth County Sheriff's Department, where the 17-year-old was being held last year after his arrest Jan. 19 on charges that he killed James Alenson, according to lawyers involved in the case.

Brassard said the request for Odgren's conversations was too broad and violated requirements that such requests be linked to a court hearing.

"That's good for us," Jonathan Shapiro, defense attorney, said in a telephone interview following Brassard's decision. He said the judge ordered both defense and prosecutors to hand over their copies of the tapes to court officials.

Shapiro had asked Brassard to throw out the conversations as he moved forward with an insanity defense on behalf of the teenager, who appeared in court yesterday.

Odgren, who has Asperger's syndrome, a mild form of autism, has pleaded not guilty to first-degree murder, which carries a sentence of life without the possibility of parole.

If found not guilty by reason of insanity, he would be sent to a state mental health facility and possibly be released if specialists conclude he is not dangerously mentally ill.

A spokesman for Middlesex District Attorney Gerard T. Leone said Brassard has not shut the door on prosecutors' plans to let a jury hear Odgren's own words once the case goes to trial. He said prosecutors are considering three options, all of which could lead to the tapes becoming evidence once again.

"We remain confident that these jail tapes will be allowed in trial," spokesman Corey Welford said in a statement.

He said prosecutors can appeal the judge's ruling, file a motion asking the judge to rule they are entitled to the evidence, or subpoena the tapes again as the case nears trial.

For years, telephone calls from all state prisons, county houses of correction, and jails have been recorded.

Prior to Brassard's ruling, Middlesex Assistant District Attorney Daniel J. Bennett said he wanted Odgren's parents to describe their son's demeanor in the hours and weeks after Odgren allegedly stabbed the 15-year-old freshman to death inside a school bathroom.

He said the tapes show a lucid and coherent Odgren, not someone in the grip of extreme mental illness.

He also said he wants to use recordings made when Odgren had visitors at the detention facility where detainees are kept from relatives by a clear plastic wall and must use a telephone to communicate.

Those phone conversations are automatically recorded, officials said.

Bennett told the judge that once during a visit with her son, Dorothy Odgren set aside a phone and gave her son verbal instructions.

"She stated to the defendant through the glass without the phone he should stay in his lockup and in his bed" in order to strengthen the claim of mental instability, Bennett said. "It was purposely done through the glass and not the recording system."

Bennett told the judge that prosecutors had routinely subpoenaed the Plymouth County Sheriff's Department for the recordings, a view echoed by George Pyne, a sheriff's department employee who said he has sent "thousands" of similar recordings to prosecutors around the state.

Robert M. Griffin, a Boston defense lawyer and former Suffolk County prosecutor, said judges once routinely allowed prosecutors to use taped phone conversations.

"Even though they warn you that the phones are being recorded, if you are a prisoner down there, what are you going to do if you have to make a phone call?" Griffin said. "You are a captive audience."

Griffin said that in recent months some judges have changed course and raised questions, similar to those being posed by Brassard, about whether it was legally appropriate for prosecutors to quickly obtain the taped conversations.

Shapiro said Brassard's ruling helps his client, but could also help other defendants in those cases where prosecutors are using taped phone conversations for evidence against them.

He said Middlesex prosecutors went on a "fishing expedition."