Judge bars use of jail tapes against Lincoln-Sudbury slay defendant -- for now
By John R. Ellement, Globe Staff
WOBURN -- A Middlesex Superior Court judge today barred prosecutors -- for now -- from using as evidence taped conversations between murder suspect John Odgren and his family, recordings that prosecutors say would show the teen was sane when he allegedly stabbed a Lincoln-Sudbury Regional High School classmate to death last year.
Superior Court Judge Raymond Brassard said prosecutors violated state law by using a subpoena to collect copies of all of Odgren's telephone and visiting-room conversations from the Plymouth County sheriff's department, which held the 17-year-old following his arrest in the Jan. 19, 2007 killing of James Alenson, according to attorneys involved in the case.
Brassard said prosecutors needed to narrow their request for tapes and they should not be able to get all the recordings at once, attorneys said.
"That's good for us,'' said defense attorney Jonathan Shapiro in a telephone interview following Brassard's decision. He said the judge ordered both defense and prosecution to hand over their copies of the tapes to court officials.
Shapiro had asked Brassard to throw out the conversations as he presses forward with an insanity defense for the thin teenager who appeared in court today with a peach-fuzz moustache and tousled hair.
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 parole. If found not guilty by reason of insanity, he would be sent to a state mental health facility and possibly be released if experts 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 at trial. He said prosecutors are mulling three options, all of which could lead to the tapes becoming evidence 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 claiming they are entitled to the evidence, or subpoena the tapes again just before the case goes to trial.
For years, telephone calls from all state prisons and county jails have been recorded.
Prior to Brassard's ruling, Assistant District Attorney Daniel J. Bennett said he wanted Odgren's parents to testify at a hearing about 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 grips of extreme mental illness.
He also said he wanted to use recordings made when Odgren had visitors at the detention facility where inmates are seprated 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 through the plastic screen to stay inside his cell to strengthen the mental health defense strategy.
"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 had sent "thousands'' of similar recordings to prosecutors around the state in the past 10 years.
Robert M. Griffin, a Boston defense attorney and former Suffolk County prosecutor, said that 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 is legally appropriate for prosecutors to easily obtain the tapes with a simple subpoena.
Shapiro said Brassard's ruling helps his client, but could also help other defendants in those cases. He said Middlesex prosecutors had gone on a "fishing expedition" when they sought the tapes.
